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REPORTS OF CASES
BEFORE
THE HIGH COURT
CIRCUIT COURTS OF JUSTICIARY
U SCOTLAND,
DURING '
THE YEARS 1848, 1849, 1850, 1851, 1852.
BY
JOHN SHAW, ESQ.
ADVOCATE.
EDINBURGH:
T. & T. CLARK, LAW-BOOKSELLERS.
LONDON : BENNING & CO.
MDCCCLIII.
PRINTED BV MACPHEKSON & SYME, 12 ST DAVID STKEET, EDINBUKGH.
JUDGES
OF THE
COURT OF JUSTICIARY
DURING THE PERIOD OF THESE REPORTS.
LOED JUSTICE-GENERAL.
1841. The Right Honourable DAVID BOYLE.
LORD JUSTICE-CLERK.
1841. The Right Honoheable JOHN HOPE.
LORDS COMMISSIONERS OF JUSTICIARY.
1824. JOSHUA HENRY MACKENZIE, LORD MACKENZIE.
1829 Sia JAMES WELLWOOD MONCREIFF, LORD MONCREIFF.
1830. JOHN HAY FORBES, LORD MEDWYN.
18,37. HENRY COCKBCRN, LORD COCKBURN.
1843. ALEXANDER WOOD, LORD WOOD.
1849. JAMES IVORY, LORD IVORY.
1850. DUNCAN M'NEILL, LORD COLONSAY.
1861. JOHN COWAN, LORD COWAN.
1852. ADAM ANDERSON, LORD ANDERSON.
LORD ADVOCATE.
1846. ANDREW RUTHERFURD.
1851. JAMES MONCREIFF.
1842. DUNCAN M'NEILL.
1852. ADAM ANDERSON.
1852. JOHN INGLIS.
SOLICITOR-GENERAL.
1846. THOMAS MAITLAND.
1850. JAMES MONCREIFF.
1851. JOHN COWAN.
1851. GEORGE DBAS.
1842. ADAM ANDERSON.
1852. JOHN INGLIS.
1852. CHARLES NEAVES.
IV
1841. DAVID MILNE.
1843. DAVID MURE.
1845. CHARLES BAILLIE.
1846. GEORGE DBAS.-
1846. JAMES CRAUFURD.
1847. E. F. MAITLAND.
ADVOCATES DEPUTE.
1847. J. M. BELL.
1849. GEORGE YOUNG.
1850. THOMAS CLEGHORN.
1851. G. DINGWALL FORDYCE.
1851. ANDREW R. CLARK.
1841.
1847.
CROWN AGENT.
JAMES TYTLER, W. S.
JOHN CLERK BRODIE, W.
INDEX OF NAMES.
Balfour, David, High Court, July 20, 1850,
Barr, John, Ayr, May 1, 18S0,
Baxter, Gilea v., High Court, Mar. IS, 1849,
Beattie, Ebenezer, Dumfries, April 28, 18S0,
Bell, David, Perth, April 25, 1 8S0,
Bennison, William, High Court, Aug. 1, 1850,
Blytha «. M'Bain, High Court, Feb. 20, 1862, .
Blyth, Isabella, Perth, April 29, 1852, .
Bruce v. Duncan and M'Lean, Perth, Oct. 13, 1848,
Burnet, Bums «., High Court, June 12, J 850,
Burnett, Robina, and Others, High Court, Nov. 17, 1861,
Burnett, Etch and Golf d.. High Court, Mar. 16, 1849, .
Bums V. Moxey, High Court, Feb. 21, 1850,
Bums ». Bumet, High Court, June 12, 1850,
Cameron, William, Glasgow, Dec. 22, 1861,
Cameron, John, High Court, Jan. 31, 1860,
Chapman v. Colville, High Court, Dec. 14, 1850,
Clark, William, and Janet Gray or. Thomson, Aberdeen,
Sept. 20, 1849, .....
Chambers, Agnes, and Helen Henderson, High Court, July 26,
1849, ......
Chisholm, James, lEgh Court, July 9, 1849,
Colville, Chapman v.. High Court, Dec. 14, I860, . ,
Connor, Dennis, & Edward Morrison, Glasgow, Sept. 23, 1848,
Craig V. Steel, High Court, Dec. 20, 1848,
Crawford, Alex. Fraser, High Court, Jan. 6, & Feb. 11, 1850,
Crawford and Dill, Simpson v., High Court, Dec. 22, 1861,
Cross, Phillips and Ford v., High Court, Dec. 20, 1848,
Crossgrove or Bradley, Catherine, High Court, Feb. 6, I860,
Cumming, James, and Others, High Court, Nov. 7, 1848,
Daly, Helen, and Helen Kirk or James, Dumfries, April 27,
1850,
Dinwidie v. Knox, Stirling, April 1 7, 1849,
Dowd, Theodore, and Darby Furie, High Court, June 8, 1862,
Duncan and M'Lean, Bruce v., Perth, Oct. 13, 1848,
Duncan, Chrisjaan, Aberdeen, April 24, 1849,
Duncan, Walter, Perth, Sept. 26, 1849,
PAOB
Culpable Neglect of Duty, 377
Rape, &e.
362
Suspension,
203
Theft, &c.
356
Night Poaching,
348
Murder,
453
Suspension,
654
Murder,
567
Appeal,
12
Appeal,
373
Theft,
497
Suspension,
201
Suspension,
330
Appeal,
373
Theft,
526
Murder, .
296
Suspension,
466
> Murder,
267
Robbery or The
sft, . ?52
Falsehood, Frai
id, &c. 241
Suspension,
466
Rape,
5
Suspension,
148
Threatening Le
tters, &e. 309
Suspension,
623
Suspension, '
139
Theft,
301
5 Contravention
I 12th Vict. c.
of llth&
12, . 17
Theft, &c.
Appeal, . . 216
Theft, ... 676
Appeal, . . 12
Theft by Housebreaking, 225
I Breach of Trust and Em-
( bezzleraent, . 270
354
INDEX OF NAMES.
Duncan, William, and Alexander Gumming, High Court, ) „ .
March n,18S0, J * orgery, »c.
I Appeal,
Dundee and Union Whale Fishing Co., and Mavour and Pa-
ton 2,., Perth, Oct. 13, 1848,
Dutliie, Ann, Aberdeen, April 24, 1 849,
Etch and Golf «. Burnett, High Court, Mar. IS, 1849, .
Falconer and Others, High Court, Jan. 26, 1852,
Fegan, Alexander, & Elizabeth M'Kenzie or Hyde, Glasgow,
Sept. IS, 1849, ....
Finnie v. Gilmour, High Court, June 11, IBSO,
Flinn, James, and Margaret M'Donald, Perth, Oct. 12, 1848,
Fraser, Daniel, High Court, June 3, IBSO,
Galloway, Peter, High Court, Feb. 24, 18S1 ,
Glass, Methvent)., High Court, Dec. 20, 1848, .
Gibson, Jas., & Malcolm M'Millan, High Court, Mar. 12,1849,
Giles V. Baxter, High Court, Mar. 16, 1849,
Gilmour, Finnie v., High Court, June 11, 1850,
Graham v. Moxey, High Court, Feb. 17, 1849,
Hall, James, and Others, High Court, July 25, 1849,
Hamilton, John, and Mary Garden or Hamilton, High Court,
Jan. 2, 1849, . . . •
Henderson v. M'Auley and Go., Glasgow, April 26, 1849,
Henderson, Thomas, George Langlands, and John Williams,
High Court, Aug. 29, and 30, 1 850, . . 1
Hendrie, Wyher and Others v., Glasgow, Sept. 17, 1849,
Hogg, Thomas, High Court, June 9, 1851,
Howden, George, Jedburgh, April 8, 18S0,
Home, Watt v., High Court, Dec. 8,^1851,
Hoyes, James, High CoHrfr, Dec. 11, 1848,
Jameson v. Palmer, High Court, June 2, 1849,
Kennedy, E. of Selkirk, v., High Court, Dec. 14, 18S0,
kiellor, Jean, High Cotirt, Nov. 20, 1850,
Kilgour, Joseph, High Court, Dec. 8, 1851,
Kljppen, George, High Court, Nov. 6, 1849,
Knox, Dinwidie v., Stirling, April 17, 1849,
Launders v. Mann and Co., Perth, April 24, 18S0,
Lock, J. and P. Doolen v. Steel, High Court, Feb. 6, 1850.
Lockie v. M'Whirter, High Court, Feb. 15, 1849,
Lyon and Main, Macdonald v.. High Court, Dec. 8, 1851 '
M'Auley and Co. Henderson v., Glasgow, April 26, 1849,
Mackay, Meekison and Tutor v., High Court, Feb. 13 1849
M'Bain, BIyths v., High Court, Feb. 20, 1862,
Mackean «. Wilson, High Court, Deo. 9, 1 848,
Macpherson, Welsh v., Inverness, April 19, 1850,
Macdonald v. Lyon and Main, High Court, Dec. 8, 1851, Suspension,
i Wanton and Malicious
Mischief,
Suspension, . f .
Bobbery, &c.,»
Forgery,
Suspension,
Culpable Homicide,
Theft,
Culpable Homicide,
Supension,
Theft, &c..
Suspension,
Suspension,
Suspension,
Falsehood, Fraud, &c,
Reset of Theft,
Appeal,
Culpable Homicide, &c.
Appeal,
Murder,
Forgery,
Suspension,
Theft, &c.' .
Suspension,
Suspension,
ConcealmentofPregnaneyj
Theft, &c.
Falsehood, Fraud, &c.
Appeal,
Appeal,
Supension,
Appeal,
Suspension,
Appeal,
Suspension,
Suspension,
Suspension,
PAGB
335
15
227
201
546
261
368
9
365
470
146
191
203
368
168
254
149
219
394
266
484
351
619
134
238
463
,S76
501
276
215
347
307
161
516
2)9
169
654
1.S2
345
516
INDKX OP NAMES.
M'Gall, William, High Court, March 13, 1849,
J|:'Neillage, Hugh, Inrerary, Sept. 18, 1850,
M'Millan, Margaret, High Court, Jan. 6, 1851,
Manh and Co., Launders v., Perth, April 24, 186Q, '
M'Walter or Murray, Elizaheth, High Court, Feb. 2, 1862,
Marshall v. Turner, Glasgow, April 26, 1849,
Mathison v. Monkland Iron & Steel Co., Glasgow, Sept. 17,1849,
Matson, Alexander, High Court, Nov. 27, 1 849,
Mavour and Paton v. Dundee and Union Whale Fishing Co., J
Perth, Oct. 13, 1848, - . . . i
Meekison and Tutor v. Mackay, High Court, Feb. 1 S, 1 849,
Menzies, Alexander James Petty, High Court, Feb. 5, 1849,
Methven v. Glass, High Court, Dec. 20, 1848,
Middlemiss v. D'Eresby, High Court, March 16, 1852,
Miller, Arch., & Susan Brown or Miller, High Court, Jan. 3, 1850,
Mitchell, Hannah, High Court, Jan. 4, 1850,
M'Kichen or Charters v. Moir, Dumfries, April 19, 1 849,
Monkland Iron & Steel Co., Mathison?)., Glasgow, Sept. 17, 1849,
Mgoney, John, High Court, Nov. 17, 1851,
Mooney, John, High Court, Dec. 8, 1851,
Moxey, Graham v., High Court, Feb. 17, 1849,
Moxey, Telfer v., High Court, June 2, 1849,
Moxey, Bums «., High Court, Feb. 21, 1860,
Moxey, Sleigh and Russell v., High Court, June 12, 18S0,
Murdoch, John Elder, Perth, May 2, 1849, .
Muir, M'Kichen or Charters »., Dumfries, April 19, 1 849,
M'Whirter, Lockip v., High Court. Feb. 16, 1849,
O'Neill, John, High Court, June 2, 1851,
Park and Others v. Earl of Stair, High Court, Jan. 1 2, ) 862,
Paterson, John, and David Ritchie, Stirling, Sept. 7, 1848,
Peanver, Peter, High Court, Nov. 1 6, 1850,
Phillips and Ford ». Cross, High Court, Dec. 20, 1848,
Pilmer, Ritchie v., High Court, Dec. 20, 1848,
Pihner, Jameson ii:, High Court, June 2, 1 849,
Purves, James, High Court, Nov. 20, 1848,
Pyott, G. B. and W. B., High Court, June 16, 1851, .
Quillichan, Patrick, High Court, Jan. 24, 1852,
Rait, WilUam, High Court, Nov. 1 7, 1 85 1,
Reid, Veitch and Others v.. High Court, June, 2, 1 849,
Ritchie v. Pilmer, High Court, Dec. 20, 1848,
Robertson, James, Perth, July 28, 1850,
Robertson, John Gordon, High Court, Feb. 19, 1849,
Simpson v. Crawford and Dill, High Court, Deo. 22, 1851,
Saffley, Threshie v., Dumfries, April 1 9, 1 852,
Selkirk, Earl of,!), Kennedy, High Court, Dec. 14, 1850,
Sellers, Daniel, Inverary, Sept. 24, 1851,
Sleigh and Russell v. Moxey, High Court, June 12, I860,
Smith ». Skinner, Dumfries, April 8, 1851,
; Embezzlement and Breach
of Trust,
194
Cattle Stealing,
459
Culpable Homicide,
468
Appeal,
. 347
Swindling,
552
Appeal,
222
Appeal,
266
Murder,
127
Appeal,
16
Suspension,
169
Forgery, &c. ,
153
Suspension,
146
Suspension,
■ ^S7
Forgery, &c.
288
Murder, &c.
293
Appeal,
223
Appeal,
266
Theft,
496
Base Coin,
$09
Suspension,
168
Suspension,
231
Suspension,
330
Suspension,
369
Wilful Damage,
329
Appeal,
223
Appeal,
161
Theft,
483
Suspension,
532
Robbery,
!
Murder,
462
Suspension,
139
Suspension,
■ 142
Suspension,
238
Bigamy, ,
■ . m
Fire-raising,
. 490
Bigamy,
537
Falsehood, &c.
500
Suspension,
236
Suspension,
142
Murder,
447
Theft, &o.
186
Suspension,
623
Appeal,
563
Suspension,
463
Note, 648
Suspension,
369
Appeal,
481
VIU
INDEX OF NAMES.
Stair, Earl of. Park and Others v.. High Court, Jaa. 12, 18S2,j
Steel V. Craig, High Court, Deo. 20, 1848,
Steel, Lock, J. and P. Doolen v.. High Court, Feb. 6, 1850,
Stevens, John, Glasgow, Jan. 11, 1850,
Sutherland, Mai'y, and Isabella Gibson or Murray, High Court,
Dec. 11, 1848, ....
Tait, Jacob, and John Taylor, Jedburgh, April 16, 1851,
Taylor, John, Jacob Tait, Jedburgh, April 16, 1851,
Telfer v. Moxey, High Court, June 2, 1849,
Thomson, John, High Court, Dec. 4, 1848,
Threshie v. Saffley, Dumfries, April 19, 1852,
Turner, Marshall »., Glasgow, April 26, 1849,
Vance, Robert, Glasgow, March 23, 1849,
Veifoh and Others s.Reid, High Court, June 2, 1849,
Walker, James, Wilson and Others, Glasgow, Jan. 14, 1850,
Watson, Wilson ()., Perth, Oct. 1, 1851,
Watt V. Home, High Court, Dec. 8, 1851,
Welsh V. Macpherson, Inverness, April 19, 1860,
Wilson, Mackean «., High Court, Dec, 9, 1848,
Wilson «i. Wataon,Perth, Oct. 1,1851, . . '
Wyher and Others J". Hendrie, Glasgow, Sept. 17, 1849,
Suspension,
532
Suspension,
148
Appeal
307
Murder,
287
Con. 2d and 3d Will. IV.
u. 36,
1.3S
Deforcement,
475
Deforcement,
475
Suspension,
231
Con. 10th Geo. IV. c.
48, 129
Appeal,
563
Appeal,
222
Culpable Homicide,
210
Suspension,
236
NoU, 648
Appeal,
493
Suspension,
619
Appeal,
345
Suspension,
132
Appeal,
493
Appeal,
266
Yates and Parkes, Glasgow, Dec. 24, 1851,
Rape, &c.
528
REPORTS, &c.
WEST CIRCUIT.
STIRLING.
Autumn 1848.
Judges — Lords Moncreiff and Cockburn.
Her Majesty's Advocate — Deas A.D.
AGAINST
John Paterson and Datid Ritchie — Grahame.
Indictment — Locus — Variance. — Held that there is no land in
Scotland truly extra-parochial, and that in the case of a peculiar
jurisdiction it is sufficient to lihelthe offence alternatively, as having
been committed within one or other of the adjacent parishes.
Question, whether it is a fatal objection when a wrong parish is
named in the libel, if it be shewn in proof, that the locus mentioned
is situate in another parish.
John Pateeson and David Ritchie were charged jo^a'pa-
with Robbery ; as also Assault ; as also with Theft : teraon and
Ritchie.
In so far as (1.), on the 10th day of March 1848, or on one or Stirling.
other of the days of that month, or of February immediately preceding, Sept. 7.
or of April immediately following, on or near the public road leading 1_
from Stirling to Dumbarton, and at or near a part of the said public I'otbery.
road situated in the parish of Saint Ninians, or parish of Stirling, and
county of Stirling, and about one hundred and fifty yards, or thereby,
east from the bye-road leading from the said public road to the King's
Park Quarry, or at or near some other part of the said public road
situated in the said parishes, or one or other of them, to the prosecutor
unknown, you the said John Paterson and David Ritchie did, both and
each, or one or other of you, wickedly and feloniously, attack and as-
A
2 CASES BEFORE THE HIGH COURT
No. 1. sault John Johnstone, a shoemaker, then and now or lately residing
terron^n'd ^* °^ "^^'' TouCh, in the parish of Saint Ninians, and county aforesaid,
David and did seize hold of him by the shoulders, and did kick him upon or
^'*"'''^- near the feet and legs, and did thereby, or otherwise, bring him down
Stirling, upon his back to the ground, and did lie above him, and did place your
^ms.' ^^^^ °^ ^^''^^ "PO"! ^^^ mouth, and did rifle his pockets ; and you did,
■g^y^^J^ both and each, or one or other of you, then and there, wickedly and
^'^^' feloniously, and by force and violence, take from his pockets or person,
and did fob him of, a halfpenny copper piece, the property, or in the
lawful possession, of the said John Johnstone : Likeas (2.) on the
14th day of April 1848, or on one or other of the days of that month,
or of March immediately preceding, or of May immediately following,
on or near the public road leading between Stirling and Callander,
and at or near a part of the said road situated in the parish of Saint
■ Ninians, and county aforesaid, and one hundred and sixty-eight yards
or thereby to the eastward of Kildean Toil-Bar, in the parish of Saint
Ninians, and county aforesaid, now or lately occupied by John John-
ston, toll-keeper, now or lately residing there, or at or near some other
part of the said public road situated in the said parish and county, to
the prosecutor unknown, you the said John Paterson and David
Ritchie did, both and each, or one or othet of you, wickedly and felo-
niously, attack and assault Thomas Bilsland, a brick- moulder, then
and now or lately residing in or near Cowan Street, in or near Stirling,
and did, with your fist or fists, strike him a blow or blows on or near
his face, and did throw or force him down upon his face to the ground,
and did repeately strike him on or near the back part of his head while
he was lying on the ground, and did seize him by the neck or throat,
and endeavour to choke' him, and did thrust your hand or hands, or
part thereof, into his mouth, and did tear open his coat or great-coat,
and did search one or more of his pockets, and did otherwise maltreat
and abuse him ; and all this, both and each, or one or other of you,
did, with intent to rob the said Thomas Bilsland : Likeas (3.) on the
night of the 14th, or morning of the 15th, day of April 1848, or on
one or other of the days of that month, or of March immediately pre-
ceding, or of May immediately following, on or near Broad Street of
Stirling, and at or near that part of sajd street which is in front of, or
near to, the shop in said street then and now or lately occupied by
William Peddie, then and now or la,tely bookseller there, you the said
David Eitchie did, wickedly and feloniously, attack and assault Mar-
garet Clark, then or lately residing with James Roberts, in or near
Jail Wynd of Stirling, and now or lately residing in or near High
Street of Linlithgow, with her father, James Clark, shoemaker, and did
throw or force her down upon her back on the ground, and did forcibly
thrust your hand into the breast or front part of her dress ; and you
the said David Ritchie did, then and there, wickedly and feloniously,
and by force and violence, take from her person, and did rob her of.
Robbery.
AND CIRCUIT COUETS OF JUSTICIARY. 3
a small bag or purse, sevenpence sterling, or thereby, in silver money, No. 1.
and fourpence sterling, or thereby, in copper money, the property, or ^°^ ,
in the lawful possessiouj of the said Margaret Clark : Or otherwise, David
time and place last above libelled, you the said David Eitchie did, ^'*°^'^-
wickedly and feloniously, steal and theftuously away take from, or Stirling.
from near the person of the said Margaret Clark, the aforesaid bag or i848
purse, sevenpence sterling, or thereby, in silver money, and fourpence
sterling, or thereby, in copper money, the property, or in the lawful
possession, of the said Margaret Clark.
In the course of the trial, it appeared that the locus
stated in the libel, was situated neither in the parish
of St Ninians, nor in that of Stirling, but within the
extra-parochial jurisdiction or district of the constabulary
of Stirling Castle.
In respect of the second charge, it appeared that the
locus, although correctly described otherwise, was situate
not in the parish of St Ninians, but in that of Stirling.
Geahame for the pannels, in addressing the Jury,
argued in respect of the first and second charges, there
was a misdescription of the locus in the indictment. He
admitted that it would have been unnecessary for the
prosecutor to have named the parish, but contended, that
where a parish was mentioned, it was a fatal objection
if it was shewn in proof that the locus set forth was not
within its boundaries. Alison, vol. ii. p. 262-3, and cases
there cited, particularly those of Peter Gordon, Perth,
Sept. 28. 1812, Robert Henning, Aberdeen, Sept. 1821,
and Thomas M'Pherson, Inverness, Spring 1824.
Lord Moncreiff charged the Jury, that, in point of
law, there was no land in Scotland that was extra-paro-
chial. All land whatever was situated in some parish,
Ross V. Earl of Haddington, 3 Shaw, 115 (N. E. 76), and
therefore in describing the locus of the first robbery as
in the parish of St Ninians or parish of Stirling, he had
given the correct description, and there were no grounds
for sustaining the objection stated to that charge. In
regard to the argument maintained relative to the second
charge, the Jury would judge whether the evidence sup-
4 CASES BEFORE THE HIGH COURT
No. 1. ported the pannel's contention, that the crime, if com-
John Pa- '■ '^ tj T • A a
terson and mitted by the pannel, of which they would also juage,
RiteMe. was perpetrated at a spot in Stirling parish, instead of
Stirling. St Ninians, as libelled. As to the law which had been
m*8/' quoted, he had long been of opinion that it was errone-
Robbery. ous, and it was seriously doubted by some of the most
eminent lawyers at the time when the leading cases
were decided. It would be best for the Jury to return
a verdict with a special finding relative to this point.
The Jury returned the following verdict : — ' The Jury
' unanimously find both the pannels guilty as libelled,
' of the charges of robbery under the first and third
' charges in the indictment, and of the assault with in-
' tent to rob in the second charge, and are satisfied as
' to the accuracy of the locus mentioned in the indict-
' ment where the second charge was committed, but are
' not prepared to say in what parish.'
Whereupon it was objected, that this amounted to a
verdict of acquittal on the second charge, and the Advo-
cate-Depute declined to move for sentence on that part
of the case, confining himself to the first charge.
Lord Moncreiff said, he would have certified the
point had the Public Prosecutor moved for sentence.
He was not now required to do so, but he would inti-
mate that his own opinion was contrary to the view
taken by Mr Alison, and pressed by the pannels' counsel.
In respect of which verdict of assize, so far as regard-
ed the first and third charges, the pannels were sen-
tenced to be transported for the period of ten years.
AND CIRCUIT COURTS OP JUSTICIARY.
GLASGOW.
Judges — Lords Moncreifp and Cockburn. Sept. 23.
1848.
Her Majesty's Advocate — Deas A.D.
AGAINST
Dennis Connor and Edward Morrison. — W. H. Thornton.
Eape — Locus — Insufficient description. — Question, 1st, Whether,
in the particular circumstances, the locus, where a rape was said to
have been committed, was described with sufficient accuracy.
2d, Whether the description of the party said to have been injured
was not too vague.
Dennis Connor and Edward Morrison were charged No. 2.
with Rape ; as also, Assault, committed with, Intent to connor and
Ravish, and to the effusion of blood and injury of the ^o^^on
person : Glasgow.
Sept. 23.
1848.
In so FAR AS (1.), on the 25th day of August 1848, or on one or
other of the days of that month, or of July immediately proceeding, on A^g^idt'
or near the public or parish road commonly called or known by the
name of the Craig Road, leading from the farm-st§ading of the lands
or farm of South Medrox, in the parish of New Monkland aforesaid,
then and now or lately occupied by William M'Lean senior, then and
now or lately residing there, to or in the direction of Cumbernauld, in
the parish of Cumbernauld, and county of Dumbarton, and at or near
a part of the said road situated in the parish of New Monkland afore-
said, which is distant 246 yards, or thereby, from the farm -offices of
South Medrox aforesaid, or at or near a gate or entrance into a park
or field upon the lands or farm of South Medrox aforesaid, commonly
called the Kilknowe Park, situated in the parish of New Monkland
aforesaid, or at or near some other part of the said road, or of the said
lands or farm, situated in the parish of New Monkland aforesaid, to
the prosecutor unknown, you the said Dennis Connor did, wickedly
and feloniously, attack and assault Mary Houston, then and now or
lately servant to, and residing with, the said James M'Lean senior,
and did seize hold of her, and did, with a stick, or with some other
weapon to the prosecutor unknown, strike her two more blows on or
6 CASES BEFORE THE HIGH COURT
No. 2. near her breast and stomach, or other part or parts of her person, and
Connorand ^^^ P"^* y°^^ ^^'^^ under her petticoats, and upon her naked person,
Edward and did seize her by the throat to prevent her crying for assistance,
'^°"''"''°- and did throw or force her down to the ground ; and the said Mary
Glasgow. Houston having succeeded in rising from the ground, you the said
1848. ' Dennis Connor did drag or pull her some short distance, and did again
r; : throw or force her down to the ground, and did grasp her by the throat
Rape, and , ,.,.,,.. j j-j i-
Assault, m order to stifle her cries, and did raise her petticoats, and did lie
upon her, and did have carnal knowledge of her person, forcibly and
against her will, and did ravish her : Oa otherwise, time and place
last above libelled, you the said Dennis Connor did wickedly attack
and assault the said Mary Houston, and did seize hold of her,«and did,
with a stick, or with some other weapon to the prosecutor unknown,
strike her two or more blows on or near her breast and stomach, or
other part or parts of her person, and did put your hand under her
petticoats, and upon her naked person, and did seize her by the throat
to prevent her crying for assistance, and did throw or force her down
to the ground ; and the said Mary Houston having succeeded in rising
from the ground, you the said Dennis Connor did drag or pull her some
short distance, and did again throw or force her down to the ground,
and did grasp her by the throat to stifle her cries, and did raise her
petticoats, and did lie upon her, and did attempt to have carnal know-
ledge of her person, forcibly and against her will ; and this you the
said Dennis Connor did, with intent to ravish the said Mary Houston,
and to the injury of her person : Likeas (2.), time above libelled, at
or near a part of the said road, situated in the parish of New Monk-
land aforesaid, and distant 236, or thereby, yards from the farm-offices
aforesaid, or at or near some other part of the said road, or of the said
farm, situated in the said parish of New Monkland, to the prosecutor
unknown, you the said Edward Morrison did, wickedly and feloniously,
attack and assault ^gnes M'Callum or James, a widow, then and now
or lately residing with Malcolm M'Callum, a weaver, then and now or
lately residing at or near Annathill, in the parish of New Monkland
aforesaid, and did seize hold of her, and did throw her down to the
ground, and did fall or throw yourself upon her ; and she having suc-
ceeded in getting up from the ground, you the said Edward Morrison
did again seize hold of her, and did carry her to some short distance,
and did again throw her down to the ground, and did lie upon her,
and did raise or attempt to raise her petticoats, and did put your hand
on her mouth, and did wrap a shawl around her head and mouth to
stifle her cries for assistance, and did attempt to have carnal know-
ledge of her person, forcibly and against her will ; and this you the
said Edward Morrison did with intent to ravish the said Agnes
M'Callum or James, and to the injury of her person : Likeas (3.)
time above libelled, at or near the dwelling-house, situated at or near
South Medrox aforesaid, then and now or lately occupied by the said
AND CIRCUIT COURTS OF JUSTICIARY. 7
William M'Lean senior, or at some other place or places at or near No. 2.
Spnth Medrox aforesaid, and in the said parish of New Monkland, to Q;o„™°and
the prosecutor unknown, you the said Dennis Connor and Edward Edward
Morrison did, both and each, or one or other of you, wickedly and fe- Momaon.
loniously, attack and assault William M'Lean junior, son of, and then Glasgow.
and now or lately residing with, the said James M'Lean senior, and ^^^g_ *
did, with your hands and feet, or with one or more of them, and with — ;
• 1 7 1 1 -11 Rape, and
a stick or bludgeon, or with some other weapon or weapons to the pro- Assault.
secutor unknown, inflict several severe blows on or near his forehead
and other parts of his person, and did wrestle with him, and did throw
or force him down to the ground, and did otherwise maltreat and abuse
him ; by all which, or part thereof, he was cut and wounded, to the
effusion of his blood and the injury of his person : Farther, James
M'Lean junior, then and now or lately farm-servant to, and residing
with, the said James M'Lean senior, having gone to the assistance of
the said William M'Lean junior, you the said Dennis Connor and Ed-
ward Morrison did, both and each, or one or other of you, time and
place or places last above libelled, wickedly and feloniously attack and
assault the said James M'Lean junior, and did seize hold of him, and
did struggle with him,jind did throw or force him down to the ground,
and did fall above him, and did, with your fists, repeatedly strike him
on several parts of his person, and did otherwise maltreat and abuse
him ; by all which, or part thereof, his face and eyes, or one or more
of them, were scratched and wounded, all to the injury of his person :
And you the said Edward Morrison being conscious of your guilt in
the premises, did abscond and flee from justice.
The pannel Morrison having been fugitated for non-
appearance, on the diet being called against Connor,
W. H. Thomson objected to the relevancy of the in-
dictment, on two grojinds, 1st, in respect of the vague-
ness with which the prosecutor described the locus where
the rape was said to have been committed, in so far as
it is stated that it was ' at or near a gate of entrance
' into a park or field upon the lands or farm of South
' Medrox aforesaid, commonly called the Kilnknowe
' Park, situated in the Parish of New Monkland afore-
' said, or at or near some other part of the said road, or
' of the said lands or farm, situated in the parish of New
' Monkland aforesaid, to the prosecutor unknown.' In
detailing the alternative charge of assault, with intent
to commit rape, the words ' or otherwise, place last
' above libelled,' were used ; this implied more than one
8 CASES BEFORE THE HIGH COURT
No. 2. locus had been previously libelled, which was the more
Connor and objectionable, inasmuch as, on looking back, the place
MoSn. last above libelled was the place on said farm ' to the
Glasgow. ' prosecutor unknown.' Either, therefore, the alterna-
^1848^*' *^v® charge was libelled with an undue degree of uncer-
■^ ^^ tainty, or there was more than one place intended to be
Assault, described in the charge of rape, in which case the libel
was deficient in not giving more precise notice to the
pannel.
Farther, the party alleged to have been injured was
described to have been a servant ' of said James M'Lean
' senior, residing with him,' without any farther description
of her. There had not been any James M'Lean previously
mentioned in the indictment, the only M'Lean named as
the occupier of the farm being designated ' William.'
This was too uncertain a description of the party injured,
inasmuch as, the word ' said' being superfluous, the in-
sertion of it was calculated to mislead, and this the more
especially, as .the prisoner being entitled to assume his
innocence of a charge of this nature, he would thereby
be misled as to the nature of the proof necessary to ad-
duce in exculpation. Indeed, if so great a latitude were
allowed, the prosecutor might adduce in support of his
charge any Mary Houston, who was servant to some
James M'Lean, living any where within the kingdom of
Scotland.
Deas, for the prosecution, replied, that the words'
objected to, ' place last above libelled,' were in the com-
mon form used in such charges. In respect to the other
objection, he wished time to consider it, and moved the
Court to postpone the case till next day.
At the next calling, Deas stated that he would not
press this indictment farther ; and on his motion, the
Court deserted the diet against the pannel, pro loco et
tempore.
AND CIRCUIT COURTS OP JUSTICIARY.
NORTH CIRCUIT.
PERTH.
Judges — The Lord Jdstice-Clerk and Lord Wood. oct. 12.
1848.
Her Majesty's Advocate — J. M. Bell A. D.
AGAINST
James Flinn and Margaret M'Donald or Brennan — Broun.
Culpable Homicide — Assadlt with Aggravations. — Circum-
stances, in which the Court directed'"the Jury that, after the pro-
secutor had withdrawn the charge of Culpable Homicide, they were
not entitled to find the pannels guilty of assault, to the danger of
life.
James Flinn and Margaret M'Donald or Brennan, No. 3.
were accused of Culpable Homicide ; as also. Assault, FUnn Mid
aggravated by being to the serious injury of the person, M^nlnaTd.
and to the danger of life : ""p^rthT"
Oct. 12.
1848.
In so far as, upon the 8th day of April 1848, or on one or other
of the days of that mouth, or of March imme&iately preceding, or of Homicide
May immediately following, in or near Guthrie's Close, in or near *"=•
Overgate Street of Dundee, you the said James Flinn and Margaret
M'Donald or Brennan did, both and each, or one or other of you,
wickedly and feloniously, attack and assault William M'Donald, then
or lately before labourer or fish-dealer, residing at or near Hawkhill of
Dundee, and did strike him with your fists on the head or other parts
of his person, and did knock or force him to the ground, and did kick
him on the belly, or other parts of his person ; and you the said Mar-
garet M'Donald or Brennan did strike the said William M'Donald
with an iron tray or server or other instrument to the prosecutor un-
known, one or more blows on the head or other parts of his person ;
and you the said James Flinn did, one or more times press your knees
or limbs forcibly and severely on the back, or on the belly or other
parts of the person of the said William M'Donald ; and you the said
James Flinn and Margaret M'Donald or Brennan did, both and each.
10 CASES BEFORE THE HIGH COURT
No. 3. or one or other of you, otherwise maltreat and abuse the said William
James M'Donald ; by all which, or part thereof, the said-William M'Donald
Flinn and ' •' > r e i.- ve -nA in
Margaret was seriously injured in his person, to the danger ot nis lite, ann lu
M'Donald. consequence thereof died, on or about the night of the 9th, or morning
Perth. " of the 10th day of April foresaid, and was thup culpably bereaved of
^fg-^l^- life by you the said James Flinn and Margaret M'Donald or Brennan,
-rr-, — — — or one or other of you.
Culpable •'
Tc! ^' It appeared from the evidence, that after the scuffle
which was shewn to have taken place amongst the par-
ties, in the course of which it was proved, that the pan-
nel Flinn had thrown the deceased, and fallen upon him
with his knees on the stomach ; and also, that the fe-
male prisoner had dealt him a blow over the head with
an iron tray, — that he had gone to a public house and
partaken rather freely of whisky. The medical wit-
nesses who had examined the body, on cross-examina-
tion admitted, that drinking ardent spirits after receiving
such injuries as those spoken to by the witnesses, would
be calculated to excite inflammation, and occasion death,
even in cases where otherwise no such result might have
followed.
Upon this the Advocate-depute abandoned the charge
of Culpable Homicide, and addressed the jury in support
of the charge of Assault, as laid, with the aggravations.
Broun, for the pannels, contended, that as the public
prosecutor had abandoned the charge of culpable homi-
cide, the aggravations to the charge of assault that it
was to the danger of life, must also be abandoned, in-
asmuch, as the circumstance that death had followed
within twenty-four hours, most clearly shewed either
that the death was the result of the injuries received,
or that it had resulted altogether from the state of intoxi-
cation in which it was shewn the deceased was, after the
time of the alleged injuries.
The Lord Justice-Clerk in summing up to the jury,
said, that, since the charge of culpable homicide had been
given up, so he thought must the aggravation to the
charge of assault, that it was to the danger of life. It
did not seem possible to sustain such an aggravation in
AND CIRCUIT COURTS OF JUSTICIARY. 1 1
a case where death had unquestionably resulted within No. 3.
twenty-four hours after the injuries alleged, after the Fiinn and
public prosecutor had, by abandoning the charge of M-oSd.
culpable homicide, confessed that the death had not been perth.
the result of the outrages charged. In such a case, it ^il'il"^'
must either be culpable homicide, or common assault, "culpabiT
because, where the death followed the injuries so Homicide,
speedily, the principal charge ought to have been in-
sisted in if the death could have been traced to the vio-
lence charged against the pannels ; and if it could not,
then there was equally no evidence in support of the
aggravation. His Lordship added, that the Advocate-
depute had done quite right in withdrawing the principal
charge ; and that in these remarks he was not stating
any general rule, but merely making observations on
the particular evidence in this case, in which the ag-
gravation of danger to life could not consistently be in-
sisted in if the charge of culpable homicide was actually
given up.
The Jury, by a large majority, found the pannels guilty
of assault, to the serious injury of the person.
In respect of which verdict of assize, the pannels were
sentenced to be imprisoned in the prison of Dundee for
four calendar months.
12 CASES BEFORE THE HIGH COURT
Oct. 13. Judge— The Lord Justice-Clerk.
1848. "
John Bruce, Appellant— P. Eraser.
AGAINST
Thomas Duncan and John M'Lean, Respondents— (?. Young.
Appeal— Procedure.— Held that the Sheriff might competently pro-
nounce sentence in a suit, at the instance of the Procurator-fiscal, to
have a vicious dog destroyed, although no record was kept of the
proceedings, and the sentence was pronounced in the absence of the
defender.
No. 4. On the 13th of August 1846, the following Petition
Duncan & and CoHiplaint was presented to the Sheriff of Perth-
^^ shire, by the respondents, as joint procurators-fiscal for
Oct. 13. the public interest, shewing —
1848. ^
Appeal. ( Xhat the petitioners have received information that John Bruce,
' farmer at Rosemount, has in his possession a large dog of a black or
' dark colour, which is vicious and dangerous to the lieges. That the
' said dog has been in the general practice of attacking and biting
' people who happened to be passing by the said farm of Rosemount ;
' and in particular, that the said dog did, upon the evening of Tuesday
' the twenty-third day of June last, or about that time, attack and
' bite, to the effusion of their blood, and dangerous injury of their per-
' sons, Thomas Reid, forester at St Martin's, William Wallace John-
' ston, gardener at ' St Martin's, and James M'Laren, servant to the
' Rev. John Park of St Martin's, and that upon the public road called
' the Den road, and about midway between the farm of St Martin's and
' Rosemount, while the said persons were going home. That the dog
' received no provocation to occasion such attack. That the said John
' Bruce has been frequently desired and required either to chain up
' the said dog, or to destroy it for the safety of the lieges, but he re-
' fuses so to do. That the petitioners, in consequence of the many
' complaints made to them regarding the viciousness of the said dog,
' and the public danger incurred by allowing it to go at large, did, on
AND CIRCUIT COURTS OF JUSTICIAEY. 13
' the twenty-seventli day of June last, by letter addressed to the said No. 4.
' John Bruce, require him to get the dog destroyed, but to this appli- Bruce «
' cation no attention was given. That it is therefore necessary for the M'Lean.
' safety of the public that the said dog be destroyed, under your Lord- „ , —
' ship's authority.' And therefore praying, that it might please his Oct. 1 3.
Lordship ' to grant warrant for citing the said John Bruce to appear ^^^^'
' before you, to answer to this complaint, and on the facts therein Appeal.
' stated being admitted or proved, to grant warrant to officers of court
' to destroy the said dog, and to find the said John Bruce liable in the
' expenses of this application, and consequent procedure.'
Thereafter, on the 17th of August 1846, in obedience
to the deliverance of the Sheriff-substitute on the fore-
going petition and complaint, the appellant appeared in
court, and verbally pleaded not guilty. After which,
without any record, the Sheriff-substitute ordered proof
of the facts alleged in the petition and complaint, and
on the 24th March 1848, decerned against the appel-
lant, in terms of the prayer of the petition. To which
interlocutor the Sheriff adhered on appeal.
Against this decision, the appellant appealed to the
Circuit Court, when,
Feaser argued on his behalf, that the whole pro-
ceedings before the Sheriff were inept, in respect (1.),
if the case was to be regarded as a criminal one, at the
instance of the Procurator-fiscal, then the judgment was
incompetent, it having been pronounced in the absence
of the appellant ; and (2.), if the judgment was to be
regarded as having been pronounced in a civil case,
it was equally void, inasmuch as no record had been
made up and closed therein, and the acts of sederunt
regulating civil causes in Sheriff Courts, had been alto-
gether disregarded.
Young, for the Respondents, answered, — This was a
proceeding sui generis. It was an application to the
Sheriff, as chief magistrate of the county, at the instance
of the Procurator-fiscal, as conservator of the public
safety. The Procurator-fiscal was not in the position of
a party prosecuting a civil claim or vindicating a patri-
14 CASES BEFORE THE HIGH COURT
No. 4. menial risrht, and therefore the Act of Sederunt had no
Bruce «■ , ,
Duncan & apphcation. On the other hand, the personal presence
^ of the appellant during the proceedings was unnecessary,
1848.' there being no conclusion for punishment or censure
Appeal, against him.
The Lord Justice-Clerk pronounced the following
interlocutor : —
' Perth, 13th October 1848. — The Lord Justice-Clerk
' having heard counsel for the parties, affirms the
' judgments of the Sheriff complained of ; dismisses
' the appeal : Finds the respondents entitled to the
' expenses of the appeal, as the same shall be taxed
' by the Clerk, and for which and the dues of extract,
' decerns.'
John Kemp, Writer, Perth, Duncan and M'Lean, Writers, Perth — Agents.
AND CIRCUIT COURTS OP JUSTICIARY. 15
Judqe — The Lord Justice-Clbbk.
Dundee and Union Whale Fishing Company, Dundee, Appellants
— P. Fraser.
RossLYN Mavour and Alexander Paton, Mariners in Dundee,
Respondents — Millar — Ogilvy.
Appeal — Competency — Expenses. — Held (overruling Wilson v.
Cameron, Broun, vol. ii., 284) that an appeal from the Sheriff is
comp.etent to the Circuit Court, before decerniture for the taxed ex-
penses in the original suit.
This was an appeal against the judgment of the Sheriff No. s.
of Forfarshire. ^"^^^L^
Millar, for the Respondents, objected to the compe- r^^c,,
tency of the appeal, inasmuch as, although the Sheriff •°- Mavour.
had pronounced a final interlocutor on the merits, there- ^^''th.
by finding expenses due, and remitting to the auditor i848.'
to tax the same and report, the appeal had been brought Appeal.
before the expenses had been taxed and decerned for.
The Act of Sederunt of 11th July 1839,^ according to the
judicial construction put thereon in numerous cases, is
decisive of the question, ( Wilson and Matheson v. Came-
ron, Inverness, Sept. 20. 1844, Broun, vol. ii. p. 284,
and cases there cited.) Indeed, to adopt any other con-
struction, would tend unduly to multiply appeals, inas-
1 This act, which was passed for regulating forms of process in
Sheriff Courts, declares, § 131, That, ' in civil causes, appeals to the
' next Circuit Court, in terms of the Act 20th Geo. II. chapter 43 ;
' 31st Geo. II. c. 42 ; 54th Geo. III. c. 67, are competent only after
c a final judgment has been pronounced, and the matter of expenses
' has been disposed of, and where the subject-matter in the suit does
' not exceed in value Twenty-five pounds sterling.
16 CASES BEFORE THE HIGH COURT
Dundef & ^^^^ 3,s quGstions might arise on the auditor's report,
Union, which might form a separate ground of appeal, and so
Fishing Co. hang up the case for six months, which questions would
-, ^"^°"''' be heard and determined along with the merits of the
Oat. 13. suit, if the construction hitherto adopted was adhered to.
'^^^' The Lord Justice-Cleek said he was extremely an-
AppeaJ. xious to do nothing which would have the effect of dis-
couraging appeals to the Circuit Court ; and after con-
sulting with Lord Wood, who was presiding in the cri-
minal Court, repelled the objection to the competency of
the appeal, and pronounced the following interlocutor,
after the appeal had been discussed on the merits : —
' Perth, iSth October 1848.— The Lord Justice-Clerk
' having heard counsel for the parties, dismisses the ap-
' peal : Finds the respondents Mavour and Alexander
' Paton entitled to their expenses in this appeal, as the
' same shall be taxed by the Clerk, and for which ex-
' penses, and the dues of extract, decerns.'
For the Appellants, — - Floweedew— For Paton, Shaw, M'Lauchlan & Reid,
Writers, Dundee.— For Maronr, Galloway, Writer, Dundee.
AND CIRCUIT COURTS OP JUSTICIARY. If
HIGH COURT.
Present,
The Lord Justice-Clerk.
Lords Mackenzie and Medwyn.
Her Majesty's Advocate — TAe Lord Advocate Buther/urd. —
Crau/urd A.D.—Deas A.D J. M. Bell A.D.
AGAINST
James Gumming — Logan — A. Grahame.
Henrt Ranken — Moncreiff* — A. Grahame.
John Grant and Robert Hamilton — Logan— Lorimer.
Indictment — Statute — Conspiracy — Sedition — Relevancy. —
Held, 1st, That it is not objectionable in an indictment under the
Act lltb and 12th Vict. c. 12, to libel a previous design as evidenced
by subsequent overt acts. 2d, That it is enough, in charging a con-
spiracy, to state that the pannel had presided over a body ' formed
' for the illegal purposes libelled,' without charging him to have
done so in pursuance of the common intent laid in the major. 3d,
That the statute 11th and 12th Vict. c. 36, does not exclude the
common law, and that it is competent to libel the same species facti
as sedition at common law, as well as a contravention of the statute.
4th, That a conspiracy, to effect an alteration of the Constitution
by force, is only an aggravated form of sedition at common law.
Evidence. — 1st, When it was proposed to shew a witness a pamphlet
said to have been published by an association of which the pannels
were members, — ruled that this was competent without first proving
that the prisoners were present at the meeting where the matter was
discussed, reserving to them the right of shewing they were not
concerned therewith. 2d, Question whether language indicative of a
conspiracy could be proved against a pannel, as having been used by
B
Nov. 7.
1848.
18 OASES BEFORE THE HIGH COURT
him on an occasion not mentioned in the libel. 3d, Held that it
was competent to prove other expressions of a seditious nature, be-
. sides those charged in the libel, in support of the charge of sedition.-
4th, Held that a letter could not be read in support of the charge of
conspiracy, libelled as commencing at a date subsequent to that of
the letter. 5th, Held, that where a letter relating to the alleged
common design had been directed to one of the pannels, and found
in the possession of another, it was competent evidence against both,
although it was not shewn that the writer was a conspirator, or that
the contents were true, or that it was ever seen by the party to
whom it was addressed.
Verdict. — Held, 1st, That it is unnecessary to libel intention in a
charge of sedition ; and 2d, That when the Jury found the pannels
guilty of sedition, in so far as they had used language ' calculated to
' excite popular disaffection, and resistance to lawful authority,' and
explained that they had purposely omitted the word intended, which
was also charged in the minor, that the verdict was good, and sen-
tence might competently follow thereon.
No. 6. James Gumming, shoemaker, residing in Duncan Street,
Gumming, Drummond Place, Edinburgh, was charged on Criminal
John Grant T,„ttp™o .
and Others, ijeliers .
High Court.
Nov. 7. That Albeit, by an Act passed in the eleventh year of Our reign,
^^^^- chapter twelve, entituled ' An Act for the~ better Security of the
Conspiracy ' Crown and Government of the United Kingdom,'' it is by section
& Sedition. •'
^ The 11th Vict. cap. 12, after reciting, that ' by an act of the
Parliament of Great Britain passed in the thirty-sixth year of
the reign of His late Majesty King George the Third, intituled
' An act for the safety and preservation of His Majesty's person and
' Government against treasonable and seditious practices and attempts,'
it was among other things enacted, that if any person or persons
whatsoever, after the day of the passing of that act, during the
natural life of His said Majesty, and until the end of the next session
of Parliament after the demise of the crown, should, within the realm
or without, compass, imagine, invent, devise, or intend death or de-
struction, or any bodily harm tending to death or destruction, maim
or wounding, imprisonment or restraint of the person of His said
Majesty, his heirs or successors, or to deprive or depose him or them
from the style, honour, or kingly name of the imperial crown of this
realm or of any other of His said Majesty's dominions or countries,
or to levy war against His said Majesty, his heirs and successors.
AND CIRCUIT COURTS OF JUSTICIARY. 19
third of the said Act enacted, 'That, if any person whatsoever, after No. 6.
' the passing of this Act, shall, within the United Kingdom or c^^-
' without, compass, imagine, invent, devise, or intend to deprive or de- John Grant
' pose Our Most Gracious Lady the Queen, Her heirs and successors, °'°" Others.
High Court.
Nov. 7.
1848.
' within this realm, in order, by force or constramt, to compel him or ;
' them to change his or their measures or counsels, or in order to put ^°ge^'^*on
' any force or constraint upon or to intimidate or overawe both houses
' or either house of Parliament, or to move or stir any foreigner or
' stranger with force to invade this realm or any other of His said
' Majesty's dominions or countries under the obeisance of His said
' Majesty, his heirs and successors, and such compassings, imaginations,
' inventions, devices, or intentions, or any of them, should express,
' utter, or declare, by publishing any printing or writing, or by any
' overt act or deed, being legally convicted thereof, upon the oaths of
' two lawful and credible witnesses, upon trial, or otherwise convicted
' or attainted by due course of law, then every such person or persons
' so as aforesaid offending should be deemed, declared, and adjudged
' to be a traitor and traitors, and should suffer pains of death, and also
' lose and forfeit as in cases of high treason : And whereas by an act
' of Parliament passed in the fifty-seventh year of the same reign,
' eutituled ' An act to make perpetual certain parts of an act of the
" thirty-sixth year of His present Majesty, for the safety and preser-
" vation of His Majesty's person and Government against treasonable
" and seditious practices and attempts, aud for the safety and preser-
" vation of the person of His Royal Highness the Prince Regent
" against treasonable practices and attempts,' all the herein-before re-
' cited provisions of the said act of the thirty-sixth 'year of His said
' Majesty's reign, which relate to the heirs and successors of his said
' Majesty, the sovereigns of these realms, were made perpetual : And
' whereas doubts are entertained whether the provisions so made per-
' petual were by the last-recited act extended to Ireland : And where -
' as it is expedient to repeal all such of the provisions made perpetual
' by the last-recited act as do not relate to offences against the person
' of the sovereign, and to enact other provisions instead thereof ap -
' plicable to all parts of the United Kingdom, and to extend to Ireland
' such of the provisions of the said acts as are not hereby repealed :'
— enacts, Sect. 1, ' That from and after the passing of this act the pro-
' visions of the said act of the thirty -sixth year of the reign of Kin"
' George the Third, made perpetual by the said act of the fifty-seventh
' year of the same reign, and all the provisions of the last-mentioned
' act in relation thereto, save such of the same respectively as relate
' to the compassing, imagining, inventing, devising, or intending death
' or destruction, or any bodily harm tending to death or destruction,
& Sedition.
20 CASES BEFORE THE HIGH COURT
No. 6. ' from the style, honour, or royal name of the Imperial Crown of
James . jj^g United Kingdom, or of any other of Her Majesty's dominions
JohnS't ' and countries, or to levy war against Her Majesty, Her heirs, or
andOthera. t successors, within any part of the United Kingdom, in order, by
High Court.
Nov. 7. ■ ' "^
^°^^' ' maim or wounding, imprisonment or restraint of the person of the
Conspiracy . jjgjrg and successors of His said Majesty King George the Third, and
the expressing, uttering, or declaring of such compassings, imagma-
tious, inventions, devices, or intentions, or any of them, shall be and
the same are hereby repealed.'— Sect. 2, ' That such of the said recited
provisons made perpetual by the said act of the fifty-seventh year of
the reign of King George the Third as are not hereby repealed, shall ex-
tend to and be in force in that part of the United Kingdom called Ire-
land.'—Sect. 3, ' That if any person whatsoever, after the passing of this
act shall, within the United Kingdom or without, compass, imagine,
invent, devise, or intend to deprive or depose our most gracious lady
the Queen, her heirs or successors, from the style, honour, or royal
name of the imperial crown of the United Kingdom, or of any other
of Her Majesty's dominions and countries, or to levy war against
Her Majesty, her heirs or successors, within any part of the United
Kingdom, in order by force or constraint to compel her or them to
change her or their measures or counsels, or in order to put any
force or constraint upon or in order to intimidate or overawe both
houses or either house of Parliament, or to move or stir any
foreigner or stranger with force to invade the United Kingdom or
any other Her Majesty's dominions or countries under the obesiance
of Her Majesty, her heirs or successors, and such compassings, ima-
ginations, inventions, devices, or intentions, or any of them, shall
express, utter, or declare, by publishing any printing or writing, or
by open and advised speaking, or by any overt act or deed, every
person so oflfending shall be guilty of felony, and being convicted
thereof shall be liable, at the discretion of the court, to be trans-
ported beyond the seas for the term of his or her natural life, or for
any term not less than seven years, or to be imprisoned for any term
not exceeding two years, with or without hard labour, as the court
shall direct.' — Sect. 4, ' That no person shall be prosecuted for any
felony by virtue of this act in respect of such compassings, imagina-
tions, inventions, devices, or intentions as aforesaid, in so far as the
same are expressed, uttered, or declared by open and advised speak-
ing only, unless information of such compassings, imaginations,' in-
ventions, devices, and intentions, and of the words by which the
same were expressed, uttered, or declared^ shall be given upon oath
to one or more Justice or Justices of the Peace, or to any Sheriff or
Steward, or Sheriff Substitute or Steward Substitute, in Scotland,
AND CIRCUIT COURTS OF JUSTICIARY. 21
force or constraint, to compel Her or them to change Her or their No, 6.
measures or counselSj or in order to pat any force or constraint npon, James
or in order to intimidate or overawe, both Houses or either House of jgjm (jj-ant
Parliament, or to move or stir any foreigner or stranger with force and Others.
to invade the United Kingdom, or any other Her Majesty's domi- HighCourt.
Nov. 7.
1848.
within six davs after such words shall have been spoken, and unless Conspiracy
■' & Sedition,
a warrant for the apprehension of the person by whom such words
shall have been spoken shall be issued within ten days next after
such information shall have been given as aforesaid, and unless such
warrant shall be issued within two years next after the passing of
this act ; and that no person shall be convicted of any such corn-
passings, imaginations, inventions, devices, or intentions as aforesaid,
in so far as the same are expressed, uttered, or declared by open or
advised speaking as aforesaid, except upon his own confession in
open court, or unless the words so spoken shall be proved by two
credible witnesses.' — Sect. 5, ' That it shall be lawful, in any in-
dictment for any felony u6der this act, to charge against the offender
any number of the matters, acts, or deeds by which such compass-
ings, imaginations, inventions, devices, or intentions as aforesaid, or
any of them, shall have been expressed, uttered, or declared.' —
Sect. 7, ' That if the facts or matters alleged in an indictment for any
felony under this act shall amount in law to treason, such indictment
shall not by reason thereof be deemed void, erroneous, or defective ;
and if the facts or matters proved on the trial of any person indicted
for any felony nnder this act shall amount in law to treason, such
person shall not by reason thereof be entitled to be acquitted of such
felony; but no person tried for such felony shall be afterwards pro-
secuted for treason upon the same facts.' — Sect. 9, ' That no person
committed for trial in Scotland for any offence under this act shall
be entitled to insist on liberation on bail, unless with consent of the
public prosecutor, or by warrant of the High Court or Circuit Court
of Justiciary, in such and the like manner and to the same effect as
is provided by an act passed in the session of Parliament holden in
the fifth and sixth years of the reign of His Majesty King George
the Fourth, intituled ' An act to provide that persons accused of
forgery in Scotland shall not be entitled to bail, unless in certain
cases / but the trial of any person so committed, and whether libe-
rated on bail or not, shall in all cases be proceeded with and brought
to a conclusion under the like certification and conditions as if inti-
mation to fix a diet for trial had been made to the public prosecutor
in terms of an act passed in the Scottish Parliament in the year one
thousand seven hundred and one, intituled ' An act for preventing
wrongous imprisonment, and against undue delays in trials."
22 CASES BEFORE THE HIGH COURT
No. 6. I niona, or countries under the obeisance of Her Majesty, Her beirs
Gumming, ' and successors, and such compassings, imaginations, inventions, de-
JohnGrant « yices or intentionaj or any of them, shall express, utter, and declare,
^° ' by publishing any printing or writing, or by open and advised speak-
High Cpurt. I ijjg^ Qj. \yy a^jjy Qvert act or deed, every person so offending shall be
1848.' ' guilty of felony, and, being convicted thereof, shall be liable, at the
^ : ' discretion of the court, to be transported beyond the seas for the
& Sedition. ' term of his or her natural life, or for any term not less than seven
' years, or to be imprisoned for any 4erm not exceeding two years,
' with or without hard labour, as the Court shall direct :' And albeit,
by the laws of this and of every other well-governed realm, the
wickedly and feloniously Conspiring to Effect an Alteration of the
Laws and Constitution of the Realm by force and violence, or by
arroed resistance to lawful authority ; As also Sedition, are crimes of
an heinous nature, and severely punishable : yet tbue it is and of
VEBITT, that the said James Camming is guilty of the statutory crime
and felony above libelled, and of the crime of conspiracy at common
law above libelled, and of the crime of sedition above libelled, or of one
or more of the said crimes, actor, or art and part : In so far as, in the
months of April, May, June, and July, 1848, or on one or other of
them, the particular time being to the prosecutor unknown, the said
James Cumming did, wickedly and feloniously, compass, imagine, in-
vent, devise, or intend to levy war against Us, within that part of the
United Kingdom called Scotland, in order by force or constraint to
compel Us to change Our measures or counsels, or in order to put
force and constraint upon, or in order to intimidate or overawe, both
Houses or either House of Parliament j and such compassing, imagina-
tion, invention, device, or intention, or one or more of them, the said
James Cumming did, on or about the 28th day of June 1848, or on
one or other of the days of that month, or of May immediately pre-
ceding, or of July immediately following, and within or near a room
or hall situated in or near Infirmary Street, in or near Edinburgh,
commonly called the Trades' Hall, wickedly and feloniously, express,
utter, and declare, by circulating or distributing, and thereby publish-
ing, or causing to be circulated or distributed, and thereby published,
a printed or written placard in the following or similar terms : — >
' NATIONAL GUARD.
' A Nation to be free, requires but Arms and a knowledge of
' their use.'
' A Public Meeting of the National Guard will be held in the
' Trades' Hall, Infirmary Street, on Wednesday, June 28, 1848, For
' the transaction of important business. Doors open at Eio-ht Chair
' to be taken at Half-past Eight. The various Clubs are respectfully
AND CIRCUIT COURTS OF JUSTICIARY. 23
« invited to attend. An opportunity will be given to those desirous of No. 6.
' joining. James
■' ° Gumming,
" It is the duty of all men to have arms." — Fohtescue. John Grant
" It is the right and duty of all Freemen to have Arms of De-
fence and Peace."— Bracton. "^^No^^*'
" I request you to take care that the people be well Armed and 1848.
in readiness upon all occasions." — Queen Elizabeth. Conspiracy
" To attack the lowest among the people is to attack the whole * Sedition.
people." — De Lolme.
" He is a fool who knows not that Swords were given to men
that none might be Slaves but such as know not how to use
them." — Algernon Sidney.
' One Penny will be charged at the Door to defray expenses.
' Alex. Elder, Printer, 243 High Street.'
and by then and there openly reading the said placard, or causing the
same to be openly read in the presence and hearing of a great number
of persons, all or many of them calling themselves Chartists, then and
there convened and assembled as members of a body calling itself a
National Guard, or for the formation or enrolment of such National
Guard ; and the said James Gumming did, then and there, his said
compassing, imagination, invention, device, or intention, or one or
more of them, wickedly and feloniously, farther express, utter, and
declare, by taking the chair and presiding over the proceedings of the
said meeting of persons convened and assembled as aforesaid, being
members of, or met for the formation or enrolment of the said National
Guard ; and by then and there, or at some other time within the pe-
riod above libelled, and at some other place to the prosecutor unknown,
joining the said National Guard, and enrolling himself as a member,
or otherwise becoming a member thereof ; the said body calling itself a
National Guard being, and by him known to be, an illegal and dis-
loyal body, formed or enrolled for the illegal and disloyal purposes of
subverting by force and violence the laws and government of the
realm, and of compelling by force and violence an alteration of the
laws and constitution of the realm, and of procuring and using guns
and pikes or other arms for the levying of war against Us within the
realm, as aforesaid, in order by force or constraint to compel Us to
change Our measures or counsels, and in order to put force or con-
straint upon, and in order to intimidate or overawe, both Houses or
either House of Parliament, or for one or more of the said illegal and
disloyal purposes ; and it was within the said room or hall, and by all,
or one or more, of the said persons convened and assembled as afore-
said, then and there, openly proposed or resolved in presence and
hearing of the said James Gumming, and with his sanction as chair-
24 CASES BEFORE THE HIGH COURT
No. 6. man, that the members of the said body callbg itself the National
Gumming ^"^'*^ should provide themselves with guns and pikes or other arms,
John Grant and it was intended, and by him known to be intended, to use the said
and Others. ^^^^ ^^ j ^jj^gg ^j. ^^-^ei arms, for the illegal and disloyal purposes
High Court, aforesaid, or one or more of them; and an individual then and there
ma. present, whose name is to the prosecutor unknown, did, then and there,
;; : and in presence and hearing of the said James Gumming, and with his
Conspiracy '^ ° ■, ■, i j^ e • i. i
& Sedition, sanction as chairman, propose and undertake to furnish or supply
guns, or guns and bayonets, to those ^who desired them ; and the said
James Gumming did, as chairman aforesaid, express or indicate his
approval and recommendation of such proposal and undertaking, and
did state from the chair of the said meeting, that pikes would be sup-
plied to those who preferred them ; and the said James Gamming did,
on or about the 22d day of July 1848, or on one or other of the days
of that month, and within or near the house in Duncan Street, Drum-
mond Place, Edinburgh, then and now or lately occupied by him, or
at some other time and place to the prosecutor unknown, his said com-
passing, imagination, invention, device, or intention, or one or more of
them, wickedly and feloniously, farther express, utter, and declare, by
writing, subscribing, and addressing, to ' M' James Smith 27 Bmns-
' wick Street Glasgow,' a letter in the following or similar terms : —
' Edinburgh, July 22, 1848,
' 14 Duncan S'. Drummond Place.
' Dear Smith,
' I am in receipt of yours of the 13*, and take the earliest oppor-
' tunity of communicating the information desired. Although I might
' have informed you generally as to the state and spirit abroad imme-
' diately, I deferred writing until I could procure correct accounts
' from the members and officers of the various clubs and political
' bodies intending to arm. There are a great many clubs, in fact they
' are springing up nightly, there is a sort of club mania. The follow-
' ing are the names and numbers of the clubs which are increasing
' weekly: Mitchell Club, 56. Burn's Club, 25. Muir Club, 200.
' Baird and Hardie Club, 20. Gerald Club, 26. O'Connor Club, 12.
' Washington Club, 25. Emmet Club, I have not yet ascertained the
' number. Besides the Clubs there is the National Guard which
' numbers 500, making a total of 8C4 men besides the Emmet Club.
' The National Guard have given an order for 30 muskets with bay-
' onets, but a great many have provided themselves with arms ; those
' ordered are for those who pay in weekly contributions for that pnr-
' pose. Some of the Clubs have purchased a few muskets at £l each
' which have been shewn at the meetings. I do not know of more
' than 8 as yet ; but there is an arms fund in most of the Clubs for
' those who are not able to purchase them at once. When the Guard
AND CIRCUIT COURTS OF JUSTICIARY. 25
are supplfed with the arms ordered, I may say safely there will be No. 6.
a 100 armed. Aa to the feeling which pervades the town, it is de- Cy^^f^e
cidedly warlike at the present time ; the general topic of conversa- John Grant
tion is arming, street fighting, &c. The Irish papers, the Felon par- and Others.
ticularly, is read with avidity, and hailed with rapture and enthusi- High Court,
asm. Never since I took any part in the movement, which is now iglg
nearly 20 years, was there such a strong feeling of resistance to the
' government. In 39 I was connected a defensive means associa- &"se^'ftion.
' tion, but the spirit evaporated before a single gun was subscribed
' for. It is very different now. The desire to procure and possess
' arms is gaing strength every day ; whether they would fight or not
' it is difficult to answer. I know that an Edinburgh mob generally
' fly if they are attacked ; but having arms and some idea how to make
' use of them inspire confidence. I shall be glad to hear how matters
' stand in Liverpool and Glasgow as soon as convenient. In the
' meantime,
' I am, Dear Sir,
' Your's sincerely,
' J. Cn.MMING.'
' Mr James Smith,
' Glasgow.'
and on the day, or soon after the day above libelled, as the date of the
said letter, putting the said letter addressed as aforesaid, or causing the
same to be put, into the Post-Office, Edinburgh, or into one or other of
the Receiving-Offices of the Post-Office, Edinburgh, intending the said
letter to be transmitted to, and to be received by, James Smith, now
or lately residing in or near Rotten Row Street, Glasgow, and now or
lately a porter or servant in the employment of Messrs Campbell and
Cruden, now or lately commission-agents in or near Brunswick Street
of Glasgow, or to be transmitted to, and received by, some other per-
son of the name of James Smith to the prosecutor unknown ; and the
said letter having been transmitted through the Post-Office to Glasgow,
was, on or about the 24th day of July 1848, delivered by mistake to
James Smyth, writer, or writer's clerk, son of, and now or lately re-
siding with, William Smyth, writer in Glasgow, and now or lately
carrying on business at or near No. 29 Brunswick Place or Brunswick
Street, Glasgow, and now or lately residing in or near Abbotsford
Place, in or near Glasgow, instead of being delivered to the person for
whom it was by the said James Gumming intended ; and the said
James Gumming did write, subscribe, address, and transmit, through
the Post-Office as aforesaid, the said letter, with intent thereby to
serve or promote the said illegal and disloyal purposes above libelled,
or one or more of them, of himself and his associates in the said illegal
and disloyal body calling itself a National Guard: Likeas, in the
26 CASES BEFORE THE HIGH COURT
No. 6. months of April, May, Jane, and July, 1848, above libelled, or one or
Camming, ™°''® "^ *'i«™» ^^^ particular time being to the prosecutor unknown,
John Grant and within or near the room or hall situated in or near Carrubber's
and Others, qj^^^^ gj^j^ g^j.^^^,^ Edinburgh, commonly called Painters' Hall, for-
High Court, merly occupied as a place of meeting by the Edinburgh Branch of the
1848.' National Chartist Association, and within or near the premises situ-
r — ated in or near the High Street of Edinburgh, then and now or lately
& Sedition occupied as the office of the North British Express newspaper, and
within or near the room or hall abpve libelled in or near Infirmary
Street aforesaid, and within the house in Duncan Street, Drummond
Place, Edinburgh, then and now or lately occupied by him, or in one
or more of the said places, or at some other time within the period
above libelled, and at some other place, to the prosecutor unknown, the
said James Gumming did, wickedly and feloniously, combine and con-
spire with Henry Ranken, now or lately residing in or near Bishop's
Close, High Street of Edinburgh ; Robert Hamilton, now or lately re-
siding in or near Gilmore Street, Simon Square, Edinburgh ; John
Grant, printer, now or lately residing in or near Munro's Close, Ca-
nongate of Edinburgh ; Archibald Walker, now or lately residing in
or near Bread Street, Edinburgh ; Peter Duncan, a mason, now or
lately working in or near Dalkeith, in the county of Edinburgh, and
now or lately residing in or near Edinburgh ; the said James Smith,
now or lately residing in or near Rotten Row Street, Glasgow, or with
one or more of them, and with other persons to the prosecutor un-
known, calling themselves Chartists, to efiFect an alteration of the laws
and constitution of the realm, and particularly of the constitution of
the Commons' House of Parliament, the qualification for the franchise
required by law in the election of members of Parliament, the duration
of Parliaments, and other such changes in the laws and constitution of
the realm; desired and aimed at by him and his associates, and gene-
rally by the persons calling themselves Chartists ; and the said altera-
tions of the laws and constitution of the realm he and his said associ-
ates did combine and conspire to effect, not peaceably, lawfully, and
loyally, but by force and violence, or by armed resistance to lawful
authority ; and the said James Gumming did, on or about the 28th day
day of June 1848, and within or near the room or hall above libelled,
situated in or near Infirmary Street aforesaid, wickedly, feloniously,
and seditiously, attend and take the chair, and preside over the pro-
ceedings of the meeting above libelled of a great number of persons
convened and assembled as above libelled, as members of or for the
formation and enrolment of the said body calling itself a National
Guard, the same being, and by him known to be, an illegal and dis-
loyal body, formed or enrolled for the illegal and disloyal purposes
above libelled, or one or more of them ; and he did, then and there
circulate or distribute, or cause to be circulated or distributed and did
AND CIRCUIT COURTS OF JUSTICIARY. 27
openly read, or cause to be read, in the presence and hearing of the No. 6.
said meeting, the printed or written placard above libelled ; and he did, q^^^^„
then and there, while in the chair of said meeting, hear, permit, and John Grant
sanction, a proposal or resolutiou to the effect, that the members of ana Others.
the Said National Guard should provide ^ themselves with guns and High Court,
pikes or other arms, which were intended, and by him known to be 1848."
intended, to be used for the illegal and disloyal purposes above libelled, t; :
or one or more of them ; and he did, then and there, hear, permit, and & Sedition,
sanction, a proposal and undertaking to furnish or supply guns, or
guns and bayonets, to -those who desired them ; and the said James
Gumming, in the presence and hearing of the said meeting, and in an-
swer to a remark or question by some person to the prosecutor un-
known, then and there present, whether those who wished pikes would
be supplied with pikes, did, then and thelire, openly and seditiously,
state or declare from^the chair, that pikes would be supplied to those
who preferred them, or he did, then and there, use words of the same
meaning and effect : And farther, the said James Gumming did, on
or about the 22d day of July 1848, or on one or other of the days of
that month, and within or near the house in Duncan Street above
libelled, occupied by him, or at some other time and place to the pro-
secutor unknown, wickedly, feloniously, and seditiously, write, sub-
scribe, address, and transmit, through the Post-Office as above libelled,
the letter above libelled, intending the same to be transmitted to, and
received by, James Smith, porter or servant aforesaid, or some other
person of the name of James Smith to the prosecutor unknown ; and
the said letter was transmitted through the Post-OfiSce, and delivered
by mistake as aforesaid, to the said James Smyth, writer, or writer's
clerk aforesaid.
John Grant, Printer, Henry Ranken, Editor, or
Joint Editor of the North British Express Newspaper,
and Robert Hamilton, Tailor, were charged :
That Albeit, by the laws of this and of every other well-gove,rned
realm, the wickedly and feloniously Conspiring to Effect an Alteration
of the Laws and Gonstitution of the Realm, by force and violence, or
by armed resistance to lawful authority ; as also. Sedition, are crimes
of an heinous nature, and severely punishable : Yet true it is and
OP VERITY, that you the said John Grant, Henry Ranken, and Robert
Hamilton are, all and each, or one or more of you, guilty of the crimes
above libelled, or of one or other of them, actors or actor, or art and
part : In so far as, in the months of March, April, May, June, and
July, 1848i or one or more of them, the particular date being to the
prosecutor unknown, and within or near a room or hall in or near
Carrubber's close, High street of Edinburgh, commonly called ' Pain-
28 CASES BEFORE THE HIGH COURT
No. 6. ter's Hall,' formerly occupied as a place of meeting by the Edinburgh
James Branch of the National Chartist Association, and within or near the
J^hn Grant premises in or near the High street of Edinburgh, now or lately occu-
and Others. pied.by the publishers of the North British Express newspaper, and
High Court, within or near the room or hall commonly called the Trades' Hall, m
Nov. 7. or near Infirmary street, Edinburgh, and within or near a room or hall
'"*"• in or near Adam square, Edinburgh, and on or near the Calton Hill,
Conspiracy Edinburgh, or at one or more of the said places, or at some other place
& aedition. ° ' '■ ii, -j t i,
in or near Edinburgh to the prosecutor unknown, you the said John
Grant, Henry Ranken, and Eobert Hamilton did, all and each, or one
or more of you, wickedly and feloniously, combine or conspire with
each other, and with Archibald "Walker, now or lately residing in or
near Bread street of Edinburgh; Peter Duncan, a mason, now or
lately working at or near Dalkeith, in the county of Edinburgh, now
or lately residing in or near Edinburgh ; James Gumming, shoemaker,
now or lately residing in or near Duncan street, Drummond place of
Edinburgh; or with one or more of them, and with other persons to
the prosecutor unknown, calling themselves Chartists, to effect an
alteration of the laws and constitution of the realm, and particularly
of the constitution of the Commons' House of Parliament, the quali-
fication for the franchise required by law in the election of members of
Parliament, the duration of Parliaments, and other such changes in the
laws andj^constitution of the realm, desired and aimed at by you and
your associates, and generally by the persons calling themselves Char-
tists ; and the said alterations of the laws and constitution of the
realm you and your said associates did combine and conspire to effect,
not peaceably, lawfully, and loyally, but by force and violence, or
by armed resistance to lawful authority ; and you the said John
Grant, Henry Kanken, and Robert Hamilton did, all and each, or
one or more of you, on or about the 25th day of April 1848, or ou
one or other of the days of tha;t Inonth, or of March immediately pre-
ceding, or of May immediately following, and within or near the pre-
mises aforesaid, occupied by the publishers of the North British
Express, or at one or other of the places above libelled ; and again on
or about the 28th day of April 1848, or on one or other of the days of
that month, or of March immediately preceding, or of May immediately
following, and within or near the room or hall situated in Adam
Square aforesaid, or at one or other of the places above libelled,
wickedly, feloniously, and seditiously, resolve and agree to form, or
cause and procure to be formed, a body, to be called a National
Guard, and to be provided with arms, to be used for the illegal and
seditious purpose of effecting, by force and violence, or by armed re-
sistance to lawful authority, the said alterations of the laws and con-
stitution of the realm, or one or more of them ; and you did, all and
each, or one or more of you, become a member of the said body calling
AND CIRCUIT COURTS OP JUSTICIARY. 29
itself the National Guard, knowing the same to be an illegal body, fJo. 6.
formed for the said illegal and seditious purposes : Further, you the Ja™es
said John Grant, Henry Ranken, and Robert Hamilton did, on or John (Jran't
about the 12th day of June 1848, or on one or other of the days of that andOthers^
month, or of May immediately preceding, or of July immediately fol- High Court,
lowing, attend a public meeting of a great number of persons convened ■ jo^'o
and assembled on Bruntsfield Links, near Edinburgh, by or in conse ;
quence of a printed , placard, headed 'Great Demonstration of the ^g^jtion.
' Trades of Edinburgh and Leith to refute the statement of Lord John
' Russell, that the people were not wanting any reform, and to ex-
' press their determination not to rest satisfied until the principles of
' the people's Charter become the Law of the Land.' And you, the
said John Grant did, then and there, take the chair of, and preside
over, the proceedings of the said meeting, and you did, then and there,
advise and exhort the persons there convened and assembled as afore-
said to organise themselves into Clubs and Sections for the more effec-
tual prosecution of the objects of the Chartist body : And you the
said Henry Ranken did, then and there, address the said meeting con-
vened and assembled as aforesaid, and you did, then and there, openly
and seditiously, move a resolution, in the following or similar terms : —
' We the inhabitants of Edinburgh and Leith, in public meeting as-
' sembled, are satisfied of the lamentable ignorance, or wicked, mali-
' cious falsehood of Lord John Russell, in stating that the people
' of this country do not want reform of any sort whatever ; and we
' therefore declare, that it is our intention not to rest satisfied, nor to
' cease agitating, until the people's Charter is the law of the land,
' being fully convinced that justice can neither be obtained nor pre-
' served unless the people are put in possession of their rights, which
' are clearly laid down in that document : We are farther resolved to
' exert ourselves to the utmost of our power to promulgate our prin-
' ciples in every quarter of the land, and thereby create a feeling that
' will ultimately compel our oppressors to relinquish their grasp, which
' we are satisfied will be ere long ; for we are determined that while
' there is misery for the inmates of the cottage, there shall be no peace
' for the inmates of the hall ;' and in support of the said resolution,
you the said Henry Ranken did, then and there, openly and seditiously,
and in presence of the said meeting, say, that ' it was a well-known
' fact that the police, the special constables, and the military, were
' tainted with the principles of the Chartists ; but although these men
' were true, they would not forget the advance of enlightenment
' among the working classes, that the science of chemistry had entered
' the workshop, and that working men could provide themselves with
' as deadly weapons as Warner's long range ; and if it was to be a
' struggle for life and death, if it was to be destruction, then you hoped
' and trusted that the working men would only be true to themselves,
30 CASES BEFORE THE HIGH COURT
No. 6. ' and only abstain from all acts of aggression until they were roused
CumnTinff ' V ^^^ oppression of their oppressors, and when they began the work,
John Grant ' may they do it .well;' and you the said Henry Ranken did, then
and Others. ^^^^ there, urge and advise the persons convened and assembled as
High Court- aforesaid at the said meeting, to organise themselves into clubs and
184*8.' sections for the more efltectual prosecution of the objects of the Chartist
~ — : — ~ body; and you did, further, openly and seditiously, and in presence of
& Sedition, the said meeting, say, ' If the leaders of the people are to be incarce-
f rated, if the people are to suffer this tamely, if those who have an
« interest in keeping you down feel that you will quietly submit, then
« they are secure ; but if the working men look to themselves, and if
• they look to those who place themselves in the front of the fray, if
' they look to those who are willing to brave every danger, then I say
i the working men ought to consider what means should be taken to
« protect these men : Let the property of the country be hostages in
' the hands of the people for the safety of the leaders of the people ;'
and again you did further say, ' It has been said that the French are
' inventive, but that the British have this faculty, that upon all the
' French inventions they improve. Should the authorities drive the
' people into a revolution, then I hope the people will improve upon
' the French invention of a republic ;' or you did, on the occasion
above libelled, use words of the import and effect above set forth : And
you the said Robert Hamilton did, time and place last above libelled, ad-
dress the said meeting, and you did, then and there, openly and sedi-
tiously, and in the presence of the said meeting, urge aud advise the
persons then and there convened ,and assembled as aforesaid, ' to orga-
' nise themselves into clubs and sections, and to provide themselves
' with guns and bayonets,' in order to carry into effect the said objects
of yourself and your associates; and you did then and there say,
' For the love of God prepare yourselves with guns and bayonets, as
' the day is not far distant when you may require them ;' or you did,
then and there, use words of the import and effect above set forth : And
yon the said John Grant did, then and there, as Chairman of the said
meeting, sanction the said resolution, and did put the same to the
meeting and did declare it to be passed or adopted ; And you did, as
Chairman aforesaid, hear, permit, and sanction the seditious speeches
above libelled of the said Henry Ranken and Robert Hamilton, and
you did not call them to order, or stop or attempt to stop them, or ex-
press any dissent from, or disapprobation of, the said speeches : And
your conduct and speech as aforesaid in the Chair of the said meeting
were seditious, and were intended and calculated to excite popular
disaffection, commotion, and violence, and resistance to lawful autho-
rity : FuBTHBR, on or about the 19th day of June 1848, or on one or
other of the days of that month, or of May immediately preceding, or
of July immediately following, and within or near Waterloo Rooms,
AND CIRCUIT COURTS OP JUSTICIARY. 31
near the Regent Bridge, Edinburgh, you the said Henry Ranken did, No. 6.
openly and seditiously, and in the presence of a large number of per- q„^^^„„
sons, all or many of them calling themselves Chartists, then and there John Grant
assembled, urge and recommend the meeting to ' organise into clubs Others.
' and sections,' for the more effectual prosecution of the objects of the High Court.
Chartist body, and ' to provide themselves with arms in case they i848.'
might require to use them ;' or you did, then and there, use words of :
the import and effect above set forth : Further, on or about the 24th & Sedition,
day of July 1848, or on one or other of the day« of that month, or of
June immediately preceding, or of August immediately following, and
on or near the Calton Hill, Edinburgh, you the said Henry Ranken
and Robert Hamilton did, both and each, or one or other of you, attend
a public meeting of persons then and there convened and assembled ;
and you the said Henry Ranken did, then and there, address the said
meeting, and you did, then and there, openly and seditiously, and in
presence of the said meeting, say, in reference to the illegal and cri-
minal proceedings of certain evil-disposed persons in Ireland, that you
considered that ' the people of Ireland were justified in their determi-
' nation to resist to the death the oligarchy who ruled them,' and you
did express your hope or prayer that ' the God of battles would smile
' on the oppressed, and enable them to improve the victory they were
' sure to win ;' and you the said Henry Ranken did further, then and
there, say, that ' If the power of Great Britain was brought to bear
' against the people of Ireland, then the people of Scotland must
' endeavour to distract the attention of the Government ;' and you
did, then and there, recommend the organisation of clubs and sections,
for the more effectual prosecution of the objects of the Chartist body,
and you did state that certain clubs had been already formed in Edin-
burgh, for the promotion of the objects desired by the Chartist body,
and you did name certain of these clubs, as the ' Washington Club,'
the ' Mitchell Club,' the ' Faugh-a-Balloch Club,' the ' Muir Club,'
the ' Wallace Club,' the ' William Tell Club,' and others ; and you
did urge the meeting to join one or other of the said clubs, or you did,
then and there, use language of the import and effect above set forth :
And you the said Robert Hamilton did, time and place last above
libelled, address the said meeting, and you did, then and there, openly
. and seditiously, and in presence of the said meeting, say, that the Irish
people would require help, — that pikes were easily made, — and that
the young and spirited men of Scotland should go to Ireland and help
the Irish people ; and that at one time you would have been satisfied
with the Charter as the law of the land, but that now you would accept
of nothing else than a republic, and that they would soon obtain one,
or you did, then and there, use words of the import and effect above
set forth ; and the whole or part of the language above set forth as
32 CASES BEFORE THE HIGH COURT
No. 6. used by you the said John Orant, Henry Ranken, and Robert Hamil-
Cumming ^°^ respectively, aa above libelled, was intended and calculated to
John Grant excite popular disaffection, commotion, and violence, and resistance to
"^i^^- lawful authority.
High Court-
Nov. 7.
^"''^- On the diet against Gumming being called, Looan ob-
& SeSn. jected to the relevancy, on two grounds, 1st, In respect
to the statutory offence, that^ no overt acts were suf-
ficiently set forth. The object of the late statute was
twofold, — 1st, To subject a party, in respect of certain
acts, to a charge of felony only, instead of treason ; and,
2d, To constitute advised speaking sufiicient to complete
the offence. The acts charged against the pannel were
high treason under 36th Geo. III. c. 7, which was re-
pealed by the late statute. Treason could only be proved
by overt acts (Hume, vol. i. p. 514), and there was a ne-
cessity in all cases of treason to libel the overt acts
specifically in connection with the alleged treasonable
intent. That had not been done in the case before the
Court. It might be conceded, for a-rgument's sake, that
sufficient had been stated for constituting an offence under
the statute, if properly laid ; but the prosecutor, after
alleging a substantive antecedent design, as far back as
the month of April, proceeded, in libelling the overt acts,
at once to 28th June, without alleging that this was done
in pursuance of the intent before mentioned.
The Lord Justice-Clerk quoted the indictment in
Thistlewood's case, to show that such strictness as was
contended for on behalf of the pannel was unknowTi in
English practice.
Logan departed fi-om the objection, which was ac-
cordingly repelled.
He then objected to the first charge as laid at common
law for Conspiracy. The mode adopted was too vague.
It ought to have been alleged in the minor that the va-
rious acts set forth in support of the charge, had been
done or said in pursuance of the common design charged
in the major.
AND CIRCUIT COURTS OP JUSTICIARY. 33
The Lord Justice-Clerk — It would have been better ^°^^
had the mode you now suggest been adopted ; but on the Camming,
i , . . ,. .... 1 1 , ,1 1 1 JohnGrant
seventh page of this indictment, it is stated that the body and others.
calling itself the National Guard, and over a meeting of High court,
which the pannel is said to have presided, ' was known ^sTs!'
• by him to be an illegal and disloyal body, formed and conspiracy
' enrolled for the illegal and disloyal purposes above libel- ^ s^'^'*'""-
' led, or one or more of them.' Surely that is sufficient.
The objection was repelled.
He then objected that the common law charges were
incompetent. But for the late statute, the acts charged
against the pannel would have amounted to high treason ;
and that statute having reduced the offence to one of
felony, it must now be tried exclusively as a contraven-
tion of the act.
The Court thought this 'objection so important, that, *
on the suggestion of the Lord Advocate, with the con-
currence of the prisoner's Counsel, they delayed the case
for two days, in order that the case might, together with
those of Grant, Ranken, and Hamilton, be heard before
the whole Bench. The Lord Justice-Clerk in the
meantime directed the attention of the Crown to the
mode in which it was stated that Gumming had incurred
guilt, by wickedly and feloniously expressing, uttering,
and declaring by ' writing, subscribing, and addressing' to
' Mr James Smith, 27 Brunswick Street, Glasgow, a letter,'
&c. He wished to know whether this was intended to
be a charge of publishing under the late statute, or whe-
ther it was only intended as an overt act of siedition. If
intended to support a charge under the statute, could
such charge be siipported without averring publication
expressly ? Was the letter merely intended as a narra-
tive of the compassings charged, or was it intended
to be proved as an overt act ? He also inquired whether
the Crown considered the charge of conspiracy, as laid at
common law, to be anything different from sedition. If
it was not different, the Crown could have no interest to
34 CASES BEFORE THE HIGH COURT
No. 6. press it. If different, doubts might arise as to its com-
Cumming, petencj, inasmuch as if such compassmgs and imagmmgs
and Other! as thosc charged against the pannels should be sufficiently
HighCour^. proved by overt acts, the charge might amount to high
^lail' treason, notwithstanding the recent statute. There was
Conspiracy HO precedent for any indictment in such a form for
& Sedition, ggjji^jojj merely. In all previous indictments it was
merely alleged that the acts done had been calculated
and intended to alienate the minds of the subjects or
produce disaffection, &c. ; but the present charge went a
great deal further, in charging a compassing to effect an
alteration of the laws and constitution of the realm by
force and violence. The question became very important
in considering the application of Sir William Rae's Act,
whereby the punishment of transportation was abolished
in cases of sedition, inasmuch as, if this was held to be
something different, the Crown might ask for a sentence
of transportation ?
The following Minute was then given in by the pannel :
MINUTE FOK JAMES CtTMMING.
The pannel, and the counsel for the pannel, request the Court to
delay the diet for this trial till Thursday, the 9th of November 1848,
inclusive, and consent that the intervening period shall not be reckoned
within the days of running letters of intimation under the Act 1701,
chap. 6. (Signed) James Cumming.
A. S. Logan.
Akch. Gbahame.
AND CIRCUIT COURTS OF JUSTICIARY. 35
Present,
The Lord JusticIe-Clbrk, ig^g *
Lords Mackenzie, Moncreipf, Medwyn, Cookburn, and Wood.
The diet having been again called against the ,pannel No. 6.
Gumming, and the other pannels having also surrendered, Cumming,
Logan argued, that it was incompetent to try the and'others.
offences charged against the pannels, except under the High Court.
recent statute. It was important to observe what were ^jg^'s!'
the charges made ■ against them. It was alleged that conspiracy
they had conspired to effect an alteration Of the law and ^ ^^'^•''°"-
constitution by force and violence, to intimidate and
overawe Parliament ; that they had assisted to combine,
and abetted an illegal force, called the National Guard ;
the substance of the whole being, that the object was to
effect a change of the government by force. The minor
was the same, with one exception, on both of the com-
mon law and statutory charges, the only difference being
that under the common law it was not charged that
Cumming had joined the National Guard. That was
not material to the present discussion, as the other of-
fences alleged against the pannels were relevant to have
constituted treason under the common law of Scotland,
under the 36th Geo. III. ; and were also relevant to con-
stitute felony under the late act. Erskine, B. 4, tit. 4,
sect. 20 ; Mackenzie on Criminal Law, JHigh Treason,
tit. 6; Act 1st Pari. Car. II., chap. 5, vol, ii., p. 138,
small edition. These were also identical with the treason-
able offence in the law of England, under the statute of
Edward III. Lu'ders on High Treason, p. 137 ; State
Trials, vol. vii., p. 961. The meaning of compassing is
there defined as being ' to attempt war.'
Lo'rd Justice-Clerk. — Attempting was doubtless
treason in Scotland. Is compassing, conspiring, and at-
tempting in any way different from compassing or con-
spiring?
36 CASES BEFORE THE HIGH COURT
No. 6. Logan. — The difference was, that before the Union
Cumming, compassing and conspiring would in Scotland have been
and others, high treason, but in England could only have-been proved
High Court, by overt act, done in pursuance thereof. Under the 1st
ms.' section, 7th Anne, c. 21, the jurisdiction of the Court of
Conspiracy Justiciary was ousted, and the tribunal of the Grand Jury
& Sedition. ^^ established, and the right of peremptory challenge
given ; but it could not be pretended that, because of
that statute, compassing ceased to be per se a treason in
the law of Scotland. It was incompetent to try it as
evidenced by overt acts, as an offence of sedition at com-
mon law ; Hume, vol. i., 553. There was no instance
between 1709 and 1795 in which it had been held that
species facti, such as here set forth, had been punishable
otherwise than as treason. This would meet the objec-
tion which might be stated from the 6th section of 36th
Geo. III.J, inasmuch as before that statute passed, it must
have been considered that the law of treason, introduced
by the 7th of Anne ,had merged all subordinate charges.
LoED Justice-Clerk. — Do you state that this would
not have been a seditious offence 'in England before the
passing of 36th Geo. Ill ? — And referred to the case of
Walker.
Logan. — In the case of Walker, which led to the
passing of that act, the words used were similar to those
in the present indictment, State Trials, vol. xxiii. p. 1062.
This, however, was no proof that the common law of
Scotland would have regarded it in tbe same light, as that
was altogether dissimilar to the common law of England.
Further, it was necessary that each offence should be
tried under its appropriate nomen juris ; if it was treason,
it was nothing else. The statute 36th Geo. III. did not
alter the character of the offence, it only created that
which was before merely evidence of treason into a sub-
stantive treason ; East's Pleas of the Crown, pp. 62, 63 ;
case of Hardie, p. 278. The second section of the late
statute had no such reservation as was contained in the 6th
section of 6th Geo. III., and that statute being repealed
AND CIRCUIT COURTS OF JUSTICIARY. 37
the reservation therein contained was repealed also. No. 6
But, farther, the statute of Victoria contains provisions cumming,
for the beneiit of parties accused under it. Under the fnS Oriie™'
4th section information must have been given within six Hi^h Court"'
days after the offence was committed, and a warrant ^j'jj^'/"
issued within ten days thereafter, otherwise the party conspiracy
could iiot be tried under the act ; besides which, the ^ Sediticn.
party was entitled-to the benefit of criminal letters, as
though intimation had been given under the Act 1701.
This was not an auxiliary act, but a direct and positive
declaration of the legislature, as to what the offence
should be considered ; how and when it shotild be tried,
and to what privileges the pannels would be entitled.
It was not, however, in the present case necessary to
push the argument so far. Under the reservation of
36th Geo. III. the prosecutor would not have been
entitled to try both under the statute and the common
law. He must have made his election : and it was equally
incompetent to try in both ways under this statute.
The Lord Advocate and Mr Craufurd. — ^The case
must be considered under three heads : —
1. The common law of Scotland.
2. As affected by the English Treason Acts ; and,.
3. Under the present statute.
1. The charge of conspiring, as here laid, woul& have
been an offence at common law. The common law
reaches all criminal acts falling within the range of pre-
cedent or known principle. They were quite willing, for
the sake of argument, but to that extent only, to assume
that, in Scotland as in England, all felonies merged in
treason. This, however, was in truth an intermediate
crime, not amounting to the statutory offence on the one
hand, but yet properly distinguishable from sedition on
the other. The compassing, which was now no longer
treason, was the act of an individual mind, and was com-
plete so soon as the intent was formed. To constitute
the crime of conspiracy there must be a common intent,
a combination by a plurality of persons, and it must,
38 CASES BEFORE THE HIGH COURT
No. 6. therefore, be considered as diiFerent, both from the com-
cumming, passlng which, under the late act, was made felony, and
andoaers! from Sedition as an individual act.
Highconrt! The LoED Justice-Clebk.— Do you maintain that
^°48!' under a charge of sedition, it would be incompetent to
conapiracy libel a Combining for seditious purposes ?
&.Sedition. Ceaufukd. — It is not necessary to push the argument
that length. The charge here is not so laid, but yet it is
well laid, and if the combination is proved as stated, that
is more than mere personal sedition. There never yet
was a period when such conspiracy would not fer *ehave
been a crime at common law.
2. The Act 36th Geo. III. made no difference. Under
it the common law was specially reserved ; but suppose
the common law to have been excluded under that act,
and suppose that the act had not been made perpetual,
but had expired, as was originally contemplated, within
a year, it could not then be contended that the common
law, which had been in abeyance during that period,
would not have revived. Nothing can exclude the com-
mon law but special statute, or identity between the
crime charged and an existing treason. If the act charged
be no longer treason, then, even admitting the doctrine
of merging, that would not help the argument of the
panneH inasmuch as it must be a living treason, not a
dead one, which could have that effect-
3. The recent statute repeals the 36th Geo. III., and,
by such repeal, restored the common law, as to all corn-
passings not made substantive treasons under the statute
of Her present Majesty. There is, therefore, no longer
need for any reservation of the common law, which
reaches this crime, and all such crimes by its own native
vigour. The common law was never excluded, except
by positive words ; Hume, vol. ii. p. 37. This has been
acted upon in many cases undet Lord Ellenborough's
Act; case ^i Alexander Mackenzie, High Court, Dec. 31.
1843, Broun, vol. i., 495, The result of adopting, the
view urged on the other side would be^ that between the
AND CIRCUIT COURTS 0F JUSTICIARY. 39
act of Anne and the act of Geo. III. such conspiracy, as j^^^^
then charged against the pannel, would have been no Cummmg,
offence at all, inasmuch as the pannel says that the. and others,
statute of Anne prevented it being indicted at common High Court.
law, and yet he admits that it was not treason under the i848.
statute of Edward III. There could be no doubt that it conspiracy
might have been so tried as well before as after the 36th
Geo. III. How then could it be contendeid, that there
was anything in the present statute to prevent^the Public
Prosecutor froin libelling the offence at common law,
-which, as he had shewn, had been always in force, when
the crime was not treason, and when no special statute
excluded it ?
The Lord Justice-Clerk. — Is it not a strong" thing
to say that you are entitled to disregard all the privi-
leges given to the pannel under the 4th and 9th sections,
as to the time within which the information must be
given — the warrant for apprehension issued — and the
party brought to trial ?
Ceaufurd. — If I am right that the crime of conspi-
racy is not identical with the statutory offence, then the
pannel can suffer no injury. More especially, as we
do not seek to enforce against him, in respect of this
charge, the high penalties imposed by the statute.
Lord Justice-Clerk. — Do you say you do not intend
to prove the compassing charged, as a contravention of
the statute by means of conspiracy ?
Lord Wood. — Under the 3d section, the compassings,
imaginations, &c. which are declared to be felony under
the act, are said to be completed if the party shall ex-
press, utter, or declare the same by publishing any print-
ing or writing, or by open advised speaking, or by any
overt act or deed ; do you contend that th6 privileges
given in the 4th section, as contradistinguished from that
given in the 9th, is confined to cases where the party is
alleged to have contravened the act by dpen and advised
speaking only? Is not the fair construction of the act,
that as every mode of committing the offence is declared
40 CASES BEFORE THE HIGH COURT
No. 6. to be a felony, and to be punished with the same penalty,
James '' ^ i i i n
Curaraing,. that the protection in the 4th section should equally ex-
and others, tend to all cascs, more especially as this is the plain con-
High Court, struction of the privilege given in the 9th section.
1848.' The Lord Advocate. — ^There are two answers ; the
Conspiracy fi^st, that if I do not prosecute under the statute, I am
& Sedition, jjq^ bound to give the privileges conferred by the statute ;
and, secondly, that on the plain construction of the sta-
tute, these privileges are only given where it is alleged
that the statute has been contravened by ' open and ad-
vised speaking' only. And there was good reason for
this, inasmuch as a prisoner might not be enabled to
make a proper defence, in respect of words uttered at a
public meeting, if the charge had been allowed to remain
over his head until the circumstances under which they
were uttered were forgot by parties who might other-
wise have shewn them to have been innocently used.
MoNCREiFF replied — The points are few, but impor-
tant. Our position is, that the charge of conspiring to
effect an alteration of the laws and constitution of the
realm, by reason of the statute, merges in the felony, just
as before the late enactment it would have merged in trea-
son, except for the reservation under the 36th Geo. III.
which, whatever the object might otherwise have been,
is equivalent to a statutory declaration that, but for the
reservation, the common law would have been ousted.
By the 18th section of the Treaty of Union, recited in the
statute of Anne, it was provided, ' That the laws which
' concern public right, policy and civil government, maybe
' made the same throughout the whole united kingdom.'
And by the subsequent statute, it was enacted, ' That such
' crimes and offences which are high treason or mispri-
' sion of high treason within England, shall be construed,
' adjudged and taken to be high treason and misprision of
' "high treason within Scotland ; and that from henceforth,
* no crimes or offences shall be high treason or mispri-
' sion of high treason within Scotland, but those that are
' high treason or misprision of high treason in England.'
AND CIRCUIT COURTS OF JUSTICIARY. 41
The statute overruled the common law, in so far as it No. 6.
James
was inconsistent therewith. — Lord Holt, in Sir John Cumming,
Friend's case. State Trials, vol. x. p. 599. and others.
There was no instance of a party having been indicted High Court.
for conspiracy to levy war as a separate offence before ]848.'
the 36th Geo. III. ; it must therefore have been con- conspiracy
sidered prior to that statute, if proved by overt acts, as
treason, or, if it could not be so proved, as sedition only.
Notwithstanding the rebellions, Hume makes no men-
tion of any common law charges of this kind, and it was
feir to assume that nothing of the kind was ever con-
sidered competent at that time.
The doctrine of merger goes much farther than seems
to have been supposed. In the case of Mackinlay, the
point was not decided as applicable to the law of Scot-
land, although on a fair import of the opinions delivered,
it must be assumed that the doctrine was allowed in
cases of treason. It extends to cases, however, other
than those of treason, the principle being that where
particular species facti are, by means of a statute, raised
into a higher offence, it is incompetent to prove them
under a lower charge. The Act of Victoria was a British
Statute : it had used English terms unknown to the law
of Scotland, and we must go to English law for an in-
terpretation of their meaning, By that law conspiracy
would be misdemeanour only, and even conceding the ar-
gument on the other side that the common law had re-
vived in consequence of the repeal of the 36th Geo. III.,
the only effect would be that, inasmuch as under the
present act it was declared to be a felony, and as it was an
undoubted principle of English law, that if an act
amounted to felony, it could not be charged as a mis-
demeanour, the common law charges were incompetent
here. Mr Justice BuUer's direction to the Jury in
Isaac's ease, Russell on Crimes, vol. ii. p. 550.
The question was, was the statute exclusive to any
extent — ^if so, it was exclusive to every extent. There
were provisions in favour of the pannels, and the Lord
42 CASES BEFORE THE HIGH COURT
No. 6. Advocate could not neutralize the enactments of the
Cummfng, Legislature in their favour, under pretence that he did
fnd o?w not seek to have a high penalty imposed upon them,
High Court- as the pannel might prefer those protections which
^848?' might enable him to prove his innocence, or exempt
Conspiracy him from! trial altogether, rather than be charged with
& Sedition. ^ subordinate offence infferring a minor punishment, —
in respect of which, those privileges were not accorded
to him.
LoED Justice-Gleek. — It would have been very de-
sirable to have had more time to deliberate, before giv-
ing judgment in this very important case ; but, as the
pannel is entitled to all the privileges of the act 1701,
under the 9th section of the late statute, the Court
cannot delay giving their decision upon the points which
have been urged in his favour.
I feel the greatest difficulty in supporting the relevancy
of the charges objected to, and but &r the great differ-
ence of my opinion from the rest of the Court, I should
have expressed myself more decidedly against the l-ele-
vancy of the two charges laid at common law.
I think the Lord Advocate made a ^eat mistake as
to the purport of the argument on behalf of the pannel,
and this mistake consistesd, in my opinion, in not observ-
ing that the minor of all the charges were essentially
the same. It is true, that at first the argument which
has now been submitted to the Court, was confined to
the charge of sedition only, but on my suggestion, it has
to-day been extended to both the charges at common
law.
I wish to guard myself against agreeing in the doctrine
which, it has been said, has been involved in this argu-
ment, that the offences here charged were not cogniz-
able by the common law before the 36th of Geo. III.,
I have no doubt before the passing of that act they
were illegal. That statute made them treason, but in
a crinlinal charge, the nature of the facts alleged against
the prisoner is alone important. No doubt compass-
AND CIECUIT COURTS OF JDSTICIARY. 43
ing to levy war against the Queen was made treason No. e.
by 36th Geo. III., as made perpetual in the subsequent Cumming,
year ; but this shews that, at common law, the rule was and others.
as I have stated it, namely, that intention must be High Court.
shewn by overt acts in all criminal offences, and that ^°^'il'
according to the criminality of the overt acts proved, conspiracy
the law would infer a criminal intention. The act ^ Sedition.
of Geo. III. contains a clause which expressly enables
the prosecutor to try at common law for the overt acts,
which were always illegal, as well as for the intention
then first made a crime under the statute. This, is easily
understood. It was natural, under the circumstances, to
find such a reservation, inasmuch as on the one hand it
would have been extremely difficult to have proved in-
tention without overt acts, so, on the other, it might ap-
pear on the evidence, that the only intention the law
could ascribe to the prisoner was a treasonable one,
whereby an indictment for a less offence might have
been rendered abortive. It is however conceded, that
no such reservation exists in the late statute, nor could
it be expected, for as the intentions dealt with by the
statute are now no longer substantive treasons, the rea-
son for such reservation no longer exists.
The late statute is entitled, ' an act for the better
' security of the Crown and Government of the United
' Kingdom,' and I think that the safe rule is to con^
sider it as the whole code of law, applicable to the
offences of which it treats. The general declaration of
the statute of Union, the nature of the Union itself, and
the whole scope and object of legislation since that period,
shew that such an act, defining the criminality of politi-
cal offences, containing provisions as to the mode of pro-
secution, must be taken as a legislative declaration of
what shall be the full and only remedy at both ends of
the island. This statute, after a recital of previous
statutes, and after repealing the same, in so far as they
relate to compassing, proceeds, in the third section, to
declare that such compassing shall be felony. I can-
44 CASES BEFORE THE HIGH COURT
No. 6. not separate these two provisions, more especially as
Cummb^g, this section is identical, with the single difference of add-
fndOftCTs! ing the words,' ' on her or royal name,' with the words
High Court, employed in the 36th of Geo. III. The statute then
^848^" prescribes how the offences contemplated shall be
Conspiracy punishcd, aM restricts the powers of the prosecutor as
& Sedition. iQ ^]je tjme within which he is to prefer his instance, and
thereafter restricts the competency of trial within the
period allowed to persons after intimation has been given
under the act 1701.
In the face of such provisions, tending so materially
to the benefit of the pannel, I cannot bring myself to
believe, that when the legislature enacted this statute, it
was ever contemplated that it was competent to the
Public Prosecutor to evade all these advantages, by pro-
ceeding as for a different offence at common law.
If I could, looking at the whole scope of this indict-
ment, find the charge of conspiracy or sedition different
in substance or matter of charge from the alleged
statutory offence, my difficulties would not arise ; but
surely a charge of compassing to levy war against the
Queen would be supported by proof of a conspiracy so
to do. There never was such a conspiracy, however
abortive, without a compassing. The same acts which
would shew conspiracy, if they proved anything, would
also establish the compassing. In the first charge it is
stated that the pannel was ' convened as member,' &c.
of the alleged illegal body, associated for the illegal
purposes therein set forth. Now, what does that charge
import ? It has not been disputed, that, with the ex-
ception, not the variance, that a joining of the national
guard is not charged in the minor under the common
law charge, the charges are otherwise identical. It is
manifest that one minor would have done for both. I
have the greatest diflBculty, then, in holding that any
different offence can be ascribed in the major. If it was
so, I must tell the Jury, when I come to sum up, that
although they shall say that the parties are innocent of
AND CIRCUIT COURTS OF JUSTICIARY. 45
the facts charged against them under the statute, they No. e.
may yet be guilty of the same facts under the charge Cumming,
at common law. To my mind such a state of things and other",
is impossible. It is plainly no difference that others High Court.
were with him (the pannel), inasmuch as he is alleged ^j°8''48^'
to have acted in concert with others in the contravention conspiracy
of the statute ; and perhaps the worst acts set forth * Sedition.
against him, in respect thereof, are his approval and
adoption of the illegal conduct of others with whom he
was associated.
A point has been raised during the discussion, on
which I am anxious to have the assistance of the Court,
namely, that the conspiracy here set forth is not sedition.
To that doctrine 1 entirely demur. I think it sedition
of the worst kind, but still sedition. I have never for
one moment thought, since the passing of Sir William
Rae's act, that transportation is still competent for acts
like those charged in the present indictment. Here the
Public Prosecutor ought to have charged ' sedition,
'especially when committed by compassing,' &c. In
1793, under the general charge of sedition, the pannels
had sentence, after proof, for seditious conspiring ; but
should the jury return a verdict of not guilty of sedition,
but guilty of conspiracy, if we pronounce our interlocu-
tor sustaining the relevancy of both charges, we must
■ hold this to be a good and consistent verdict. I should
like, for my assistance in directing the jury, to hear your
Lordships' sentiments on this point.
It is for these reasons that I am for sustaining the
objections which have been made to the relevancy of the
present indictment. In so doing, I wish it to be under-
stood, that I by no means go on any general notion that
the intervention of a statute abrogates the common law
in every case. I go upon the peculiarities of this statute
itself, the object for which it was framed, and the cir-
cumstances under which it passed ; and giving due re-
gard to these, I am of opinion that the Legislature has
thereby definitively declared, that wherever the acts
46 CASES BEFORE THE HIGH COURT
N^^6^. charged against a pannel, in fair construction of law,
Gumming, amount to a contravention of the statute, the only com-
and oth^. petent proceedings are those prescribed by the statute,
High Court, with all the privileges it gives to the parties accused.
m8^" Lord Mackenzie. — There are two charges objected
Conspiracy to, couspiracy aud sedition, both charges at common
& Sedition, i^^ n jg jjQ^. gg^jjj ^jjg^t tjjgge a,re not crimes at common
law themselves. But it is said that they are excluded by
the statute of Victoria, as containing matter that is in
the statutory charge. Now, I think it does contain such
matter. But does that warrant the exclusion of the com-
mon law charges ? It is said to do so. Why ? Because,
it comes in place of 36th Geo. III., which would have
excluded it. Now, to this I see two answers : —
First, the act 36th of Geo. III. did not exclude the
common law : it had a clause expressly reserving it.
Secondly, if the act of George Third did exclude the
common law, yet the mention of it in the act of Victoria, as
coming in place of that of George Third, did not mean
that it was to keep up this effect of that statute. It re-
pealed, in the proper enacting clause, the act of George the
Third, and without any qualification. It therefore took
away the treasons of the act of George Third, and substi-
tuted a felony. Now, supposing that the treasons of the
statute of George the Third excluded the common law,
why should this exclusion remain, when they were taken '
away, and a statutory felony substituted, felony having no
such quality of exclusion as treason has ? The one is
taken away with its qualities; the other substituted
with its qualities. If the accessory qualities of treason
had been continued, it would have greatly defeated the
purposes of the act, one of which was to facilitate the
trial of these things. I therefore set aside that expres-
sion. Secondly, but it is further said, that the statute of
Victoria in itself has provisions inferring the exclusion of
the common law. I am not satisfied with that argument.
The act Victoria is an act which imposes severe pains
on certain acts, which, at common law, were, as sedition.
AND CIRCUIT COURTS OF JUSTrc<ARY. 47
punishable only by two years imprisonment at most. No. 6.
. 11 Tit • n James
This statute makes them liable to transportation for Gumming,
life. It also brings in accessories after the fact, not liable aadothera.
at common law, and takes away the right of bail from HighComrt.
the accused. On the other hand, it gives certain privi- ^gla^'
leges to those prosecuted under it. The chief of these, conspiracy
which relates to the charge of advised speaking, is of value, ^ Sedition.
and there are some other privileges of less moment. But
I cannot see why these may not be given to persons pro-
secuted under the statute, without inferring that the
common Jaw is excluded in prosecutions of all the acts
of crime stated in the statute. I think the statute free
from any absurdity, in the view that the common law was
open, as before, with its lighter pains, and less severe
procedure ; but that if the statute is insisted in, the privi-
leges thereby given must be granted. I cannot therefore
supply the place of a clause of exclusion in the statute.
And, on the whole, I feel bound to repel the objections.
Lord Moncreiff. — I could have wished for more
time. This indictment contains three charges — one is
for contravention of the statute, founded on the third
section.; That is a high and penal statute, and there is
no objection to the charge founded thereon. But the
indictment goes on to state second and third charges.
The second charge I think different in some respects
from the first. The question we have to decide is,
whether this second charge is relevant as the law stands.
No one doubts, that, apart from the statute, it would
have been good. It is admitted that the species facti set
forth constituted a crime before the Union. By that
act, no doubt, the law of Scotland, so far as respects
treasonable offences, was overruled. The 36th Geo. III.
makes acts similar to those now charged a substantive
treason, and contains a special clause, reserving the com-
petency of a common law charge, thereby preventing any
merger. That statute is now repealed," and with it the
reservation also. But it is important, in considering the
questions which have been raised, to remember, that
48 CASES BEFORE THE HIGH COURT
No. 6. when they were treason, the common law was preserved,
James ■' ' - j • •
Gumming, In the rccent statute there are substituted provisions.
and Others. But there WRs HO necessitj for any reservation of the
High Court, common law, inasmuch as there was no treason which
1848. " was to have the effects of creating a merger. I never
Conspiracy heard that because a statute applies, the common law is
thereby necessarily ousted. The act of Victoria is a highly
penal one. The common law charge does not lead to the
same inference as the statutory one, and I think the second
charge different from the first. Conspiring is not neces-
sarily the same thing with compassing and imagining.
I think the law contemplates a special case, and, inas-
much as this libel contains no statement of open and ad-
vised speaking, I think the protections therein given
cannot legally be claimed by the pannels as of right.
Lord Medwyn. — The indictment contains three
charges ; the objection is to the second and third. I
agree with Lord Moncreiff that the charges are somewhat
difierent. There may be compassing without conspiracy.
There may also be conspiracy without sedition, though
in this case I think it sedition of an aggravated kind ;
the question is. Can the common law be excluded ? I
do not think the unplication from the statute is sufficiently
strong to have that effect. It is, no doubt, now a common
law offence. By 36th George Third, the common law
right is preserved. By the present act, the repeal of
36th George Third was effected, as there was no longer
any treason into which the sedition could merge. It has
been said that the statute is the whole code of law ap-
plicable to the offence. The clause by advised speaking,
although somewhat difficult to separate from the rest of
the statute, still does not appear to me sufficient to ex-
clude the common law on a charge like the present, when
that is not charged. It may be proper, where the sta-
tute is founded on, to give .the protection it aflFords, but
that, to my mind, is not enough to exclude a common
law charge like the present.
Lord Cockburn.— There are two questions for our
AND CIRCUIT COURTS OP JUSTICIARY. 49
decision, — the one is, whether treason absorbs all subor- No. e.
James
dinate charges ; conceding that to be so, it has no appli- Cumming,
cation to the present case, inasmuch as this is not said and other" .
to be treason. The other is on 36th George Third, as High court.
construed in pari materia with the recent statute. There ^{'sis.'
is no question that a conspiracy like this is a crime. I conspiracy
cannot doubt this. The point for determination is, has * ^®'i''"'"-
the common law been taken away by the late statute, so
that the only competent punishment must be under the
statute, and under the privileges given to the pannel
therein, so that he has a right to insist on being tried
under the statute, and within the statutory period. Now,
there is here no express abrogation of the common law.
It is said to be abolished by implication. It must, how-
ever, be an unavoidable and necessary implication, to
have such an effect, and I cannot see whence this arises.
Nothing is more common than alternatively charging a
9ontravention of a statute along with a common law
charge, and if one minor will serve several majors, the
prosecutor is entitled so to frame his indictment. Even
if the charges were identical, I should not think exclu^
sion of the common law necessarily followed ; but, inas-
much as these facts are not entirely the same, and the
charges are not the same, I do not think the latter
made a crime under the statute {reads statute). There
must, under the statute, be a levying of war, which is
not said here. There is not, therefore, any necessary
implication to exclude the common law, and as I can
guess the intention from words only, I do not think they
have so expressed themselves as to justify us in reject-
ing this charge. In answer to the question of privilege,
it is sufficient to say that he will be exempted from
the pains of the statute if found guilty of the common
law charge only.
Lord Wood. — I feel great difficulty in giving an
opinion. There are three charges. The one statutory,
one conspiracy, which I think the same as sedition, and
a third sedition. I think there may be many charges
50 CASES BEFORE THE HIGH COURT
No. 6. of thoise acts set forth so drawn as not to infer a con-
cummlng, travention of the statute. I think the charges in sub-
fndo?hTs! stance is the same, notwithstanding the variation in
High Court. Haajor. I have no doubt, therefore, that it is a rele-
^°848^' vant case under the statute. If I am asked to hold
Conspiracy" *^^* *^^ chargcs couspiracy and sedition are to be sus-
& Sedition, tained because they are different, I should say the ob-
jection would be good, because I conceive them to be
substantially one with the statutory offence. But the
question is, can you have both? Up to 36th Geo. III.
these acts were indictable by common law, then they
were created into treason, and the less offence merged,
but the common law was preserved even by that statute.
These could not otherwise have been prosecuted at
common law, on account of the merger. But the sta-
tute preserved the common law. Then came the present
statute. If the 36th Geo. III. had merely expired the
common law would have revived ; and the same conse-
quence follows from its repeat They are now no longer
treason, but felony under the recent statute, and, but for
other and special considerations, I would have had no
difficulty in saying they might still be prosecuted as at
common law, when the reservation was no longer neces-
sary, in consequence of the repeal of the statute. But
the difficulty is in respect of the special provision in the
recent enactment, that it is to enact other penalties in
lieu of treason, and which at first sight seems to constitute
it the only code of law on the subject. But I incline
to hold that the only meaning of this is to say they are
not to be treason but felony. I am not sure that this is
enough, by way of inference, to abrogate the common
law ; although we are pressed with the fourth section,
containing so many and valuable protections for the
benefit of the pannel.
But I think with Lord Mackenzie that the protection
is given only to the case of prosecution for open and
advised speaking, now made a felony under the statute.
But if you proceed under common law offence, I do not
AND CIRCUIT COURTS OP JUSTICIARY. 51
think that the inference is sufficient to exclude us from No. 6.
sustaining the relevancy in that form, although, no doubt, cumming,
the effect is to deprive the accused of those protections, fna oaeS!
On these grounds I concur with the majority of the Hieh Court.
Court. Xil-
Conspiracy
& Sedition.
Present,
Nov, 13.
The Lord Justice-Clerk, '**'•
Lords MoNCRteipp and Medwyn.
During the trial of the pannels Grant, Ranken, and
Hamilton, Peter Anderson, one of the witnesses, for the
Crown, deponed, — That, at a meeting of the Edinburgh
Chartist Association, a letter was received from a person
named M'Kay, applying for aid to publish a pamphlet,
a draft of which was enclosed. On a printed pamphlet
being shewn to him, for the purpose of identification, it
was objected on behalf of the pannels, that before this
could be done, the Crown must prove that the prisoners
were present on the occasion referred to.
The Court held, that as the object was to prove pub-
lication of a pamphlet, under the sanction of an associa-
tion, of which the prisoners had been shewn to be mem-
bers, the evidence could not be objected to at that stage
of the proceedings. It would be open to the prisoners
to shew that it had no application as against them, by
proving that they were not concerned in it.
John Bikings, another witness, was asked whether he
had heard Hamilton advocate the use of arms at the
meeting held on the Calton Hill, whereupon
Logan, for the pannel, objected that this evidence was
incompetent, the special occasion when the words were
said to have been uttered not having been libelled.
There was no analogy between the latitude allowed to a
52 Cases before the high court
1^0.6. prisoner in conducting his defence, and the strictness
and others, required to be observed by the Crown. To support an
High Court, indictment, the prosecutor was bound to prove particular
, ^ms'.^' facts, and that they took place on the occasions specified.
ConsEiracy The objcct of scrviug the indictment before-hand, and
& Sedition, ^j^g rcquisitious of criminal pleading, were all intended
to guard the pannel against surprise on the trial. Here
the general statement was, that the pannels had unlaw-
fully conspired, and in support of that allegation, parti-
cular species facti were set forth. The prosecutor, not
content with proving what he had alleged, sought to esta-
blish words used on an occasion of which he had given no
warning.
Craufubd said, it was proposed to lead this evidence,
not with reference to a particular charge of sedition by
spoken words, but to support the general charge of con-
spiracy. It was competent to prove that the prisoner
used any words within the period libelled, indicating his
knowledge of the nature of the institution, its intention,
and objects. It would be relevant to prove that these
words were addressed to an individual, and it can be no
less relevant to prove them when uttered at a public
meeting. He was also entitled, he maintained, to anti-
cipate a remark which might be made in defence, that
the prisoner did. not know the objects for which the in-
stitution was formed.
MoNCEEiFF answered, there were certain public meet-
ings specifically libelled, at which seditious words were
alleged to have been uttered. The pannels were en-
titled to hold that the occasions and words set forth in
the indictment, were those alone on which the prosecutor
intended to rely. It might lead to the greatest injustice
if it was allowed that other meetings and other words
than those libelled might be proved. It was incompe-
tent to prove intention of conspiracy, without giving
notice of the occasion in respect of which the proof was
offered.
AND CIRCUIT COURTS OF JUSTICIARY. 53
No.fi.
John Grant
The question was not farther pressed. and others,
The Court, however, stated that it must not be con- High Court.
... ,. , 1 11 , . . Nov. 13,
sidered as a ruhng by them, that language intimating i848,
an intention of conspiracy could not be proved, though Conspiracy
the specific occasion on which it was used was not stated
in the libel.
James Brownlee, a sergeant of police, having deponed
to having been present at the meeting at Bruntsfield
Links, at which Ranken spoke and moved the first re-
solution, was asked whether he had advised the people
to get arms, in order to procure the charter ; whereupon,
MoNCREiFF objected, that when an indictment for se-
dition libelled particular expressions in proof of the
crime, it was incompetent to prove any general state-
ment not included in the libel.
Craufurd argued that the expressions in the libel
formed a distinct charge. It was not sought to adduce
this evidence to prove any other act of sedition than
those set forth. It was, however, a proper and compe-
tent proceeding that evidence of other expressions in
the same speech should be laid before the jury, in sup-
port of the charge of sedition, or deduced from the par-
ticular expressions mentioned in the indictment.
The Coiirt ruled that the evidence was admissable.
It was proposed to ask Andrew Oliver Smith, clerk
in the County Police Office, to read a printed placard.
No. 3 of Process, purporting to be headed ' National
' Guard,' and intimating a meeting of the National
Guard on 28th June 1848 ; whereupon it was objected
by the counsel for the pannels, that this was not evidence
against any of the prisoners, until it had been previously
shewn that they were in some way connected with the
National Guard.
The Lord Justice-Cleek. — You may be able to dis-
connect yourselves from the National Guard, but, inas-
much as it is proved that the subject of a National
Guard was discussed at the meeting of the Chartist As-
sociation,, on the 25th and 28th of April, at both of
54 CASES BEFORE THE HIGH COURT
1*0.6. which Ranken and Hamilton were present, and inas-
and others, much as it is clearly shewn that they were connected
High Court, with the Association on the 28th of June, it is clearly
^il'ilf' competent that the placard should be read as evidence.
Conspiracy agalust them.
& Sedition. Thereafter it was proposed to read a letter, bearing to.
be dated, ' Glasgow, April' 30. 1845,' and subscribed
' James Smith, Sub. Sec'
Logan objected to the document being read. It
could only be produced with a view to make out con-
spiracy, but, inasmuch as the conspiracy libelled was not
alleged to extend farther back than March 1S48, it was
clearly incompetent to adduce evidence of what took
place three years before in support of the charge.
The Court held that the letter could not be read.
It wa? proposed to read a letter, No. 6, bearing to be
dated ' Edinburgh, 2 Causewayside, Thursday morning,
' 11th May 1848,' and to be subscribed 'John Ferguson,
' Archibald Walker.' It appeared that the letter was
put into the Post Office directed to Ranken, and that it
contained a request that it should be communicated to
Gumming afterwards, and that it was found in the hands
of Gumming open.
MoNCRiEFF, for Ranken, objected, that this letter could
not be read, inasmuch as it was not shown that it had
ever come into Ranken's hands.
The LoED Jtjstice-Clerk — If it did go to Gumming
by mistake, and never reached the party to whom it was
directed, it would be competent for you to prove the fact ;
but as this letter was put into the Post-office directed to
Ranken, the Gourt cannot presume that there was a mis-
carriage iu the Post Office, more especially as the letter
itself bears that it was to be communicated to Gumming,
in whose hands it was found.
MoNCRiEFF — It was uccessary to prove Ranken's
knowledge of the letter. The writer was not accused as
a co-conspirator, and, therefore, without farther evidence,
it was impossible to allow it to be read as evidence of a
AND CIRCUIT COURTS OF JUSTICIARY. 55
conspiracy in which Ranken was said to be involved, al- j^j^^"'^^:^^^^
though the writer was not. Besides which, the letter and others.
was clearly private : and it could not be evidence that a High Court.
11. .1 M • 1 1 Nov. 13.
party had written a private letter, until it was shewn that i848.
the prisoner had seen it. Put the case that the letter Conspiracy
had contained a disclosure of some nefarious design, al-
together unconnected with the alleged Chartist conspi-
racy, that clearly would not be evidence. Erskine, in
the case of Hardy, 1794, State Trials, vol. xxiv. p. 448,
properly drew the distinction between what an agent
does, and what he says has been done. This letter only
professed to be a narrative of what others had done, and
the writer was not shown to have been a co-conspirator.
Had he been so, according to the principle stated by
Erskine in the case referred to, the letter would not
have been evidence against the party to whom it was
addressed.
The Lord Advocate replied, that although it had not
been shown that Ferguson, the writer of the letter, was
in any way conaected with the conspiracy, it had been
shown that Walker, who also subscribed it, and Gum-
ming, to whom it was communicated, were both members
of the Chartist Committee, and it could not be supposed
that it would reach Cumming's hands, except through
the medium of the prisoner Ranken. This circumstance
caused the case to differ essentially from that of Hardy,
where the writer only was said to have been a conspira-
tor, and not the receiver. He also quoted Lord Mon-
creiff 's opinion in the case of the Cotton Spinners.
LoED Medwyn. — The document in Hardy's case con-
tained only the relation that certain songs were sung,
written by one person to another, who was unconcerned
with the crime charged. It was not a letter written
from one conspirator to another. Here Walker is
proved to have been a conspirator as much as Ranken.
The important point is, that at the end of the letter
there is a statement that the letter is to be handed to
Cumming, and the letter is found in Cumming's hands
56 CASES BEFORE THE HIGH COURT
johnGrant '^P^"" ^^^ presumption is, that it came to the person
and Others, entitled to opcu it, was opened, and shown to Gumming.
HighCourf Ey'en if Ranken had never seen the letter, I think it is
Nov. 13. .
1H48. good evidence. I consider this case greatly ditterent
Conspiracy from that of Hardj.
Lord Moncreiff. — My impression as to the case of
Hardy was different. I suspect yet it was the case of a
letter from one conspirator to "another, and that it was
admitted. I see no objection to this letter. It is signed
by Walker, and may be considered his as much as Fer-
guson's It is addressed to Ranken, and to be communi-
cated to another alleged conspirator. It is said for the
pannel that he did not see the letter. This may be in
the first instance supposed. But, suppose he did not
see it at first, he might afterwards see it, therefore it is
not to be assumed that he never saw it. It is said that
it contains a narrative only. But it is put in as proving
a conspiracy, and a narrative of things said to have been
done may be a most important item of evidence.
Lord Justice-Clerk. — It is always satisfactory when,
in giving a decision, we find the opinions of other Judges
coinciding with our own. But when there has been
great difference in the decisions delivered, we are better
situated to decide after the lapse of fifty years, than
when the point rose suddenly, and two of the most emi-
nent of the English Judges differed from the majority of
the Court. I have often considered the case of Hardy, and
I find it often alluded to by others. Giving due weight
to the opinion of the majority, I think it went on a mis-
apprehension. In conspiracy, the purpose and intention
is what is to be proved. The acts of those concerned,
though unknown to the prisoners, may be good evidence
of the design. Thus, in the case of Brandreth, it was
permitted to prove acts done in one part of England, to
establish the design entertained in common with those
in another. In the same way a statement of the parti-
culars at a meeting is evidence to prove the intention ;
also (as in this case) a letter expressing ^ approbation of
AND CIRCUIT COURTS OF JUSTICIARY. -■ 57
tlie procedure. The narrative of the progress, of the No. e.
^T . 1 ^ .„,,„,. . . r. ,1 John Grant
National Guard, ot the ieeang in its lavour, all go to and others,
show the purpose as much as if the facts were true. It HighCoun.
is part of the folly of such means that people delude ^ "848. "
themselves. But, does a statement that may be false, conspiracy
avowing vs^hat the purpose is, less prove that purpose be- " '*"'°'
cause it occurs in a pretended narrative of what has not
happened ? Therefore, I think it was a misapprehension
to say that the document in Hardy's case was not evi-
dence because ,it was not proved that the songs were
sung. The fact of making the narrative (though false)
may prove the purpose of the conspirators. As to the
objection that the letter was not received, I lay that
aside as of no importance. It is good evidence, just as
statements made by the conspirators here would affect
him when in London. He may take away the effect by
subsequent explanation, but in the mean time, it must be
received. A person once joining in a conspiracy may be
answerable for much which he did not intend. Assum-
ing then that the letter was not seen by Ranken, I think
it good evidence. My brother, Lord MoncreifF, is under
a mistake in supposing that the document was admitted
in the discussion in Hardy's case, to which reference has
been made. Another document was received, as to which
the facts were thought to be different.
Lord Moncreiff. — I see it was so. But I concur on
principle in receiving this document.
The Lord Justice-Clerk in proceeding to charge the
Jury, said — There were three remarks which, in the out-
set, he felt himself bound to make. The first was, that
it had been urged by the Crown, and not the less strong-
ly, from the intention having been disclaimed that it was
of great importance from the character of the times to
put down the doctrine that, under any circumstances,
any body of men for the attainment of any political
object, were entitled to use violence. Whatever may
be the importance at any particular juncture of repress-
58 CASES BEFORE THE HIGH COURT
No. 6, ing such a doctrine, it must be remembered that such a
John Grant . , . . , . , . . ^ au '
and Others. Consideration cannot weigh ili determining as to the
High Court, guilt or innocence of the pannels. Though the conse-
1848.' quences of a verdict of not guilty might be fearful, from
Conspiracy a misapprehension of the grounds on which that verdict
B itiou. proceeded, yet if you cannot, from the evidence laid before
you, find the pannels guilty, you are bound to declare
them innocent. The second remark applies to an argu-
ment yet more illegitimate, and very mischievous, which
was pressed on the part of the pannels, that you should
hesitate to deliver a verdict of guilty, although such
might be your conviction on your oaths, from the notion
that such a verdict would create discontent in some por-
tion of the community ; or, that it might have the effect
of elevating the accused into the importance of political
nlartyrs. If the crimes should be proved to your satis-
faction, you will be violating your oaths if you fail to
give a conscientious verdict, because you antipicate inex-
pedient results. The Jury must, from the facts laid be-
fore them, say whether the pannels are guilty. And I
may add, that I never knew a verdict returned after con-
scientious deliberation, that did not carry its due weight.
Neither have I found, that when the prosecution is just,
that a verdict of guilty was attended with the results
pointed to by one of the counsel. It was urged upon
you, that great allowance was to be made for the feelings
of men, who, unable to raise themselves above the bur-
dens and privations of daily toil, could not submit to the
sight of greater means being in the possession of the
upper classes, whom they might think not more worthy
than themselves, and that great indulgence on that score
was to be made for any violence of language which may
be proved against the pannels. Now, while I quite con-
cur in the feeling that great latitude may be taken in
the free discussion of public events and of political
changes, yet I know no more mischievous doctrine than
to claim toleration for violence as to the differences in
the social conditions of mankind. Such violence is, in
AND CIRCUIT COURTS OP JUSTICIARY. 59
trut^, the outbreaks of the evil heart of man, rebelling No.s.
against the decrees of Providence as to his lot and situa- ana others.
tion in life, which lead him, instead of bearing such dis- High Court.
pensations with Christian resignation, to attempt to in- is^g/
volve all society in confusion and misery, in the vain hope conspiracy
that he may benefit by the spoil of others, whom, from ^ Sedition.
such selfish feelings, he is ready to plunge into distress.
This is the plain truth as to all such topics as I was sorry
to hear descanted upon by one of the counsel. But,
really such declamation was quite beside the present case.
We have fortunately no evidence that the pannel, for
whom such mischievous views were urged, had been actu-
ated by any such dangerous and wicked and unchristian
feelings. All that is alleged against him, or can be col-
lected from the case as insisted in by the Crown, is simply
seditious language and proceedings, in the course of ad-
vocating and attempting ordinary seditious objects, tend-
ing to create insurrection. I am one very ready to make
the utmost allowance for the language used by men at
political meetings, who know very little, from their pre-
vious pursuits, of the import of what they are uttering,
and have no definite objects in view. But, while great
'freedom may be claimed in such a case, that is a very
different thing indeed from the attempt to justify, or
palliate, or excuse, violence of language and incendiary
declamation, because, forsooth, those who, by the decrees
of Providence, must labour for their bread, cannot sub-
mit to the inequalities of human society, and cannot re-
frain from incitements to general confusion, in the hope
of bettering their own condition. The latter feeling is,
I again say, the rebellion of the evil heart of man against
the dispensations of Providence, and is the very wicked-
ness which the spirit of evil excites, as the most prolific
sources of fearful crime. Fortunately we have no such
case here. Nor can I believe that the case of the pan-
nel, if he is found by you to be guilty, will be viewed by
his own class (for I have a better opinion of their religi-
ous and laoBal feelings), as an instance of a man unjustly
(50 CASES DEFORE THE HIGH COURT
No. 6. punished for trying to better his own condition and that
aj^d othere. of his associates : The lower orders in this country know
High Court, well that anarchy, and general confusion and disorder,
^isis.^' would only -add to their privations. I have adverted to
Conspiracy theso topics, because I think they ought to be banished
& Sedition, altogether from courts of justice.
The third remark I have to make is, that in judging of
such offences as these, while it is on the one hand true, that
the extravagance, the folly, and the absurdity of the lan-
guage used, may be of great importance in enabling you
to come to the conclusion, whether the speeches were
used with such a deliberate purpose — a seditious purpose,
as is imputed in the indictment ; yet, on the other hand, it
is dangerous to hold that because they are silly, they
may not also be mischievous. It would be hazardous, if
you should think the pannels guilty of forming the Na-
tional Guard, yet because you think the project extrava-
gant, that therefore it is to be treated only as folly, and
a verdict of acquittal returned on that ground. Such a
course is not reconcileable with law, or with the expe-
rience of man, as to the results which may follow from
many extravagant and very silly proceedings.
Whatever difficulties might have been expected to arise
in point of law, he was happy to say that none really ex-
isted in the case before the Court. The whole question
was, were the charges made against the pannels proved ?
If they were, there could be no doubt they amounted to
the crimes of conspiracy and sedition,, subject to the de-
termination of the Court upon the construction of the
charge of conspiracy, as to whether it was in fact any thing
else than sedition. His Lordship then went over the
whole proof, commenting upon it and explaining its bear-
ing as he went along.
The Jury, after deliberating for half an hour, return-
ed the following verdict : —
' The Jury unanimously find the charge of conspiracy
' against the three panels, as libelled, not proven.
AND CIRCUIT COliRTS OP JUSTICIARY. 61
■ ' The Jmy also unanimously find John Grant not j^^^o-g^^^^^
' guilty of sedition, as libelled. andothpra.
' The Jury further unanimously find Robert Hamilton ^jf^^^"'^'"*-
* guilty of using language calculated to excite popular i848.
* disaffection and resistance to lawful authority. conspiracy
' And, by a majority of one, find Henry Ranken guilty
' of using similar language.' *
The Lord Justice-Clerk. — Gentlemen,be goodenough
to observe, in regard to that part of the verdict which
contains the specialty finding Hamilton and Ranken
guilty of using language calculated to excite popular dis-
aflfection and resistance to lawful authority, that this is
the description of sedition libelled. Now, to make your
verdict correct, you should determine whether they are
guilty, or not guilty, of sedition, to any extent you please.
You may say, for example, that they are guilty of sedi-
tion, in so far as they used language calculated to excite
popular disaffection and resistance to lawful authority.
The Chancellor of the Jury. — That is what we mean,
my Lord.
Lord Justice-Clerk;. — In using the word ' calculated,'
do you mean to leave out the word ' intended ;' or, does
your verdict mean to embrace both ?
The Chancellor. — We meant purposely to leave out
the word ' intended.'
The Verdict was then recorded as follows : — ' The
' Jury unanimously find Robert Hamilton guilt of sedi-
' tion, in so far as that he used language calculated to
' excite popular disaffection and resistance to lawful
' authority ; and, by a majority of one, find Henry Ranken
' guilty of sedition in the same terms.'
Logan thereupon objected, that this verdict as re-
turned, was insufficient to support a sentence. — In re-
spect of which objection, the Court continued the diet
until the 18th of November.
62 CASES BEFORE THE HIGH COURT
James On the motion of the Loed Advocate, the Cotirt de-
j^. °"^"^'- serted the diet against the pannel James Gumming, sim-
Nav. IS. pliciter, and dismissed him from the bar.
Conspiracy
& Sedition.
Preaent,
^llll^' The Lord Justice-Clerk,
Lords Mackenzie, Moncreiff, Medwyn, Cockbubn, and Wood.
No. 6. The pannels, Ranken and Hamilton, having been
and o^r^! placed at the bar, the Lord Advocate moved for sentence
Hi-'h Court, against them in the usual form.
^mV^' Whereupon Logan, in support of the objection to the
;:; — : verdict, urged, that in page six of the indictment there was
Conspiracy ' o ' r a
&. Sedition. anallegationofintention,which overrode the whole charge.
In a conversation which occurred between the Justice-
Clerk and the Jury, the latter explained their meaning.
Their attention having been called to the particular
charge, and it having been pointed out to them that the in-
dictment charged that the language used was intended,
as well as calculated, to produce the effect charged, the
Jury stated that they purposely omitted the word in-
tended ; the verdict was defective, in respect that the
terms used by the Jury did not amount to sedition, and
were defective in an essential quality of the crime.
Without going into the general question, that dole is
necessary in every crime, intention was undoubtedly
necessary to constitute sedition. It was necessary also
to charge it in an indictment; though it was not
necessary to prove what actually passed in the mind of
the pannel, yet, where the Jury negatived intention, the
verdict was not for the prosecutor, but for the pannel ;
Hume, vol. i. p. 351. He more expressly sets forth
necessity of intention, vol. i. p. 553. It was not con-
tended that calculated might not sometimes comprehend
intended. The plans of a surveyor are said to be cal-
culated to promote his work, and they are also intended
so to do. But it was necessary that the words should
be not only intended, but in themselves suited and fitted
AND CIRCUIT COURTS OP JUSTICIARY. 63
to promote the object in this case. When the Intention No. 6.
was brought before the Jury they found the words cal- and others.
culated, and negatived the inference of intention. HighCom-t.
The LoED Justice-Cleek. — What I want to know is, Ills. '
what Mr Hume means by suited. Conspiracy
Logan. — He means fitted. Suited and calculated ^ ^^'^*°"-
mean the same.
Lord Mackenzie. — You mean the words are capable
of that interpretation.
Logan, in illustration, referred to cases, Hume, vol. ii.
p. 457, to show the converse of his proposition, cases in
which a special verdict was held good. In vol. xxiii.,
State Trials, there were several indictments shewing the
necessity of libelling intention.
Lord Justice-Cleek. — There are at least a dozen
other indictments in that volume.
Logan. — Yes, but they all more or less explicitly set
forth the necessity of intention.
Lord Justice-Clerk. — Not as I read them. You
need not refer to those containing charges of convention
and conspiracy ; I allude to those confined to sedition.
Logan. — It was clear, on the authority of Hume, that
malus animtis was of the essence of sedition ; and from
indictments extending over twenty years, in which
wicked intention was charged in as many words, or neces-
sarily implied by the way in which facts were set forth
therein, that it had always been so considered. In ana-
logous cases, where the verdict negatived the essence of
the crime, it was not a verdict on which sentence could
follow. Take theft, for example, where the animus
furandi was negatived. In many old cases the pannels
were found guilty of carrying away, but no sentence fol-
lowed ; Hume, vol. i. p. 73. Again, in fire-raising, it was
held to be no verdict unless, by necessary implication, it
appeared that the fire was applied with felonious purpose.
LoED Justice-Cleek. — That crime bears the wilful
nature in the major.
Logan. — But here the major sets forth that words
64 CASES BEFORE THE HIGH COURT
No. 6. calculated and intended to produce a certain effect (the
and othera. Jury havc found they were not intended), and the
High Court, analogy of the cases referred to was applicable. Take
^°8"48.^" deforcement, and suppose the crime being set forth by
Conspiracy nomen juHs only, the Jury find guilty of deforcement, but
& Sedition. jjQ^. proven that the party on whom it was committed
was an officer of the law.
Lord Justice-Clerk. — There is no analogy.
Logan. — In hamesucken, suppose it found that the
party did not enter the house with the purpose of com-
mitting the assault. The case of Stein, Hume, vol. ii.
p. 459, was directly in point. The major set forth sedi-
tion, and the prosecutor was bound to set forth in the
minor facts relevant in law as amounting to that crinie,
having thought it necessary, not only to set forth that the
words charged were seditiously spoken, but libelled and
undertaken also to prove the intention with which they
were used. Had the indictment not contained this, there
would have been an objection to its relevancy, as might
be seen from the cases and the analogy quoted. The
Court, however, were not dealing with relevancy, but
with the finding of the Jury on the facts ; and it must
be observed, that the words ' guilty of sedition' were not
in the original verdict, and the second part of it was
clearly intended to negative the allegation that the
words were used with the intention libelled. It is not
a good answer that the Jury have returned a verdict on
which a presumption of guilt might follow. The Court
are bound to deal with the verdict, and, as it stood in
connection with the charge ; if it did not amount to the
offence charged it was irrelevant ; Hume, vol. ii. p. 448.
The Jury had not found guilty of sedition merely, but
guilty ' in so far as,' &c. The question whether this
was a sufficient finding, must depend on the determina-
tion whether intention, either express or implied, was of
the essence of the crime.
MoNCREiFF. — The primary question was, what did the
Jury signify ? Hume, vol. ii. p. 456. If under an in-
AND CIRCUIT COURTS OP JUSTICIARY. 65
dictment, charging calculated and intended, the Jury No. 6.
find the words calculated, but purposely omit intended, and others.
they must have meant that it was not intended to pro- riigi, court.
duce the result. It could not be doubted that intention ^"848.^"
was of the essence of the crime. It might not be neces- conspiracy
sary to libel, or to find it in the verdict in terms, as it ^ s^^'*'°"-
might be deduced. But the condition of the argument
was, that it was negatived. If the pannels were tried
for using reckless language, that was no crime per se ;
if the indictment had libelled calculated, but not intended,
that would not have amounted to sedition. Here the
verdict negatived the terms of the indictment.
Craufubd. — In the major, the charge was simply se-
dition, which required no explanation in either the in-
dictment or the verdict. The pannels put their state-
ment incorrectly, when they said that the charge was,
that words were used, calculated and intended to pro-
duce a certain effect. The charge was, that they openly
and seditiously used words, and the rest is descriptive,
and intention was implied in the charge. Starkie on
Libel, 2. 331. And at p. 344, Starkie draws the dis-
tinction between doing things in their own nature law-
ful, and those by nature unlawful. On this principle
there was no criminal intention to be stated, or found,
or proved as a separate matter. Where the words
were unlawful, unless want of intention be clearly and
positively found, the verdict was a conviction. The
cases, occurring at end of last century and beginning of
this, were of two classes. The one, where the prisoners,
though not actually accused of conspiracy, were yet
connected with a convention, and the intention to con-
spire was necessarily set forth. In the other cases,
where there was no conspiracy, the word intended is not
introduced. But the case of M'Laren and Baird, State
Trials, vol. xxxiii., is still more explicit. In particular,
the opinion of the Justice-Clerk, p. 127. Every crime
in which will was involved, implies such an amount of
iiltention as to make it criminal
66 CASE8 BEFORE THE HIGH COURT
No. 6. An /explanation was made by the Jury, of which I
and Others, give the pannels the full benefit. If this was an expla-
High Court, nation discharging from the offence the general intention
Tm. ' involved in sedition, he could not ask for sentence. But
Conspiracy the Jury had purposely remained silent as to such im-
& Sedition. jjjjgjj intention, in so far as it was legally involved in the
crime of sedition. They had in general terms found guilty
of sedition, and that finding must have its legal effect.
Lord-Advocate. — The pannels were charged with
sedition, and with speaking on certain occasions certain
words, characterised in a particular manner. The Jury
returned the verdict now under consideration. The in-
dictment says intended and calculated. The point to be
made out on the other side is, that it was necessary for
the prosecutor to libel intention as distinct from calcu-
lated. Looking at the indictment on one hand, and the
verdict on the the other, he found nothing to stop him
from saying that the verdict was good, and that it must
have its legal effect. The pannels said he was not
to stop at the record. An explanation was made by
the Jury. Though he was thus going to extraneous
matter, he would not object, as the proceeding which
took place between the Court and the Jury was cotem-
poraneous with the verdict. It would be strange if the
explanation was to nullify the verdict. The Jury find
guilty of sedition, and then proceeded to say, in so far as
he used words calculated to produce that which is sedi-
tion ; they simply abstain from saying anything of in-
tention. Had they refused to specify intention where it
was necessary to state it specifically, it would have been
a different matter. That is not the case here. They
found all the criminal intent necessary for them to find
to be averred, when they found guilty of sedition; and
if they had not found with respect to the specific intenr-
tion, neither have they negatived the intention.
MoNCEEiFF.— It is important to be cautious, lest per-
sons not convicted by the jury should be punished. The
verdict must be clear, and the prisoners have the benefit
of any doubt. He did not concede that it was enough
AND CIRCUIT COURTS 6F JUSTICIARY. 67
for the prosecutor to put down words, and simply charge No. 6.
^ ,. . S , 1 . ^ *' ?. John Grant
them as seditious. In whatever way the intent was h- and others.
belled, it must be done either inferentially or directly. High Court.
If this was true, the next proposition was certain, that "lis. '
intention was not only of the essence of the crime, but conspiracy
a fact to be proved. Not a separate intent apart from * s^^'*'""-
the words; but it was as necessary to prove the intent
as the words. If the prosecutor undertook to prove to
the Jury that the words were calculated and intended
to produce a particular result, and then said one meant
the other, he contradicted his indictment. Two things
were to be proved under such an indictment, viz., both
the fitness and the intention. Whether intent was to be
inferred from words, or from facts, it must be proved.
4. Barnewell and Alderson, 430 ; King v. Burdett ;
M'Laren and Baird supported this proposition. Wickedly
and feloniously was there set forth, which implied intent.
The question came to be, had they done this? Nor
would the verdict imply it ; but were the Jury satisfied
thereof. The pannels were entitled to assume, that
when the Jury refused to find intention, they found inten-
tion not proved. They were not to construe the verdict
to the effect of leaving the Jury to find on matters of
law. If they find guilty of sedition, coupled with an
explanation showing that they did not find what in law
was sedition, the verdict was a verdict of acquittal. The
question was, what did the Jury mean by sedition?
They have explained guilty of sedition, if speaking those
words is sedition, but not otherwise. The Jury were
not satisfied of the criminal intent ; they have negatived
it by implication, and there is nothing to shew that if
they had been sent back, they would not have acquitted.
The Jury might have been satisfied that the words were
spoken without the intention libelled, and may have
meant to have said so ; and if so, the pannels are not
guilty of sedition.
The Court being divided in opinion, adjourned the diet
until the 25th of November.
Nov. 25.
1848.
68 CASES BEFORE THE HIGH COURT
Present,
The Lord Justice -Clerk,
Lords Mackenzie, Monckeifp, Medwyn, Co6kburn, and Wood.
No. 6. Their Lordships then delivered the following opi-
JoliD. Grant •
and Others. HIOHS :
High Court. The Lord Justice-Clekk. — In every view which has
1848^. been presented against this verdict, there are, in my opi-
Conspiracy nion, either unwarranted assumptions in point of fact, or
& Sedition. ^^^^ grave misconceptious in point of law.
The jury stated, in answer to a question from myself, that
they purposely left out the word intended in reference to
the averment at the close of the indictment, descriptive of
the character of the language used by the pannels. This,
therefore, was matter of deliberation before they settled
the terms of their verdict ; and the eifect of this, in their
minds, must also have been well considered, because,
against one of the pannels, the verdict was only returned
by a majority of one. Then, after this resolution, they
proceed, as they ultimately explained their verdict, and
stated what was their purpose throughout, to find the
pannels guilty of sedition, in so far as that they used lan-
guage calculated to excite popular disaffection and re-
sistance to lawful authority. This is the result arrived
at, then, after their deliberation on the word ' intended,'
and that such a result should be equivalent to a verdict
of not guilty, is a conclusion opposed, in my apprehen-
sion, to every sound legal principle and to the plainest
suggestions of common sense. Had the point not oc-
curred on a verdict in a criminal case, I do not believe
that such a notion would have occurred to any mind.
Indictments for sedition, as framed according to the
law and practice of Scotland, generally set forth in the
minor, that the accused — ' wickedly and feloniously used,'
or ' seditiously used' certain language, which is there de-
scribed as being of a certain character, generally said
AND CIRCUIT COUKTS OF JUSTICIARY. 69
to be ' calculated^ sometimes, but not so often, ' intended No. 6.
. John Grant
' and calcmated,' sometimes ' tending,'— sometimes is not and others.
so described at all, but left to the construction of the High Court.
Court and Jury, and merely said to be ' seditious.' isit.
Now, two remarks arise on this the settled style of Conspiracy
•^ & Sedition.
the indictments.
1. That the real and proper averment in the minor, of
the guilt of the pannels, is in the allegation that they
seditiously used the language imputed to them. This is
truly the proper allegation of guilt ; The appropriate
place for it : The proper form of it. The description of
the character of the language used is a different allega-
tion,— ^not, in truth, necessary at all, — and when used,
going not so much to the general guilt as to a particular
quality attached to the particular words, in addition to
their plain import, in so far as it is also said, that the pre-
cise effects which they are calculated to produce were in
the actual intention of the party in the clioice of them.
Now, this particular averment may be established in
whole or in part, when it is set forth in the indictment.
But the failure to prove part of that particular averment
— e. g. the failure to prove that the words were intended
to produce the exact effect which it is proved they are
calculated to produce, — does not necessarily, either in
legal principle, or by the style of indictments, or by the
reason of the thing, negative the general averment,
that the pannel used such language, not innocently, but
seditiously, looking to the place, the occasion, the num-
bers present, the circumstances of the time, the wilful
recklessness of all consequences, the violation of his duty
of allegiance, and the general purpose of mischief which
the averment of ' seditiously speaking' them imports.
If the language is not in itself calculated to produce
any impression tending to evil results on the minds of
the auditors — if the language is indifferent, or bears a
meaning apparently foreign to a seditious meaning, but
was intended to import something different, and to be so
understood and applied, then the particular intent with
70 CASES BEFORE THE HIGH COURT
No. 6. -which the words were actually in that case spoken, and
John Grant " i. I," V
and Others, not their teadency, comes to be the averment wnicn
High Court, must be made out ; e. a. If the words were, ' God save
Nov. 25. ' ^ , , . J •
1848. the Queen' — but this was meant and understood m some
Conspiracy caut language of seditious orators, to mean, ' Let us de-
' ""■ pose the Queen,' and were spoken in truth as an exhorta-
tion to that effect, it would be necessary to aver and
prove the special intent with which such words were
spoken, for their tendency would not apparently pro-
duce any evil result : And hence, in addition to aver-
ring that such words were ' seditiously spoken,' the actual
and special meaning or intent with which these particu-
lar words were spoken, must be libelled and proved.
So also in another class of seditions, such as was also
charged in this indictment — a conspiracy to effect a
change in the Constitution by force and violence ; that
particular intent is, then, of the essence of the crime, and
the acts, however seditious in themselves, would not
prove the charge, if such was not made out to be directly
the design and purpose of the conspiracy.
When, on the other hand, the plain and direct ten-
dency of the words or writing is, in the opinion of the
jury, to produce evil results, because so calculated, then
the particular intent in the mind of the speaker as to the
effect of these words, provided he spoke or published
them, not innocently, but looking to all the circumstances,
unlawfully, comes to be immaterial to the offence of se-
dition and to the averment of guilt in the indictment.
2. The second remark I have to make is, that when a ver-
dict on such an indictment as this, or on any indictment for
any other offence in Scotland is returned, finding pannels
guilty, it is never of the offence in the abstract stated in
the major. It applies to the facts in the minor. Hence, a
verdict, guilty of sedition, in so far as he used language
calculated, &Ci, need not repeat, and such verdicts never
do repeat, in so far as he seditiously used, &c. This is
quite a clear and fixed point. In a case of theft, if the
pannels stole only some of the articles, or did not steal
AND CIRCUIT COURTS OP JUSTICIARY. 71
them from a lockfast place as libelled, or under trust as No. 6
■* John Grant
labelled, as aggravations, if the jury return a verdict and others.
guilty of theft, in so far as that he took the v^atch, leaving High court.
out money, or took them from an open drawer, or in a isis. '
way which excludes the trust, it is not necessary for them conspiracy
to say further, in so far as that he theftuously took them. ^ ^ '*'""'
The words guilty of theft, completely establishes the cha-
racter of the act of taking. Just so, guilty of sedition,
establishes the character of the act of using the language,
else the party could not have been found guilty of sedi-
tion. This is a point so thoroughly fixed, settled, and
plain, that although I alluded to it in the course of Mr
Craufard's address, it was not attempted to be contested
by Mr Moncreiff in reply. It is a point, however, ex-
tremely important in the consideration of this verdict, and
of its application to the indictment. In my apprehen-
sion decisive, unless the whole averment in this indict-
ment is necessary to the crime of sedition.
In all such questions, the practice of the Court — that
is the style and structure of indictments in a variety of
cases, all of which have been under the -notice of the
Court and found relevant — comes to be the law of the
Court. This proposition has received the ftill assent of
the whole Bench on many occasions, and especially on
one late occasion, (Janet Campbell, Nov. 4. 1846), when
only one judge dissented from this rule of law, on a very
important matter, so deduced from the practice of the
Court as often acted upon.
Indeed, in criminal law, I know nothing truly more
dangerous, and if any question as to the privileges of the
subject can be supposed to be involved, however indi-
rectly, in this case, more likely, I should say, to be pre-
judicial to the interests of the subject, than loose, un-
authorized, and hasty departure from settled practice,
because in one case a pannel or the prosecutor may have
accidentally an interest to try to free himself from the
rules of such practice.
Attaching, then, great importance to practice, the first
72 CASES BEFORE THE HIGH COURT
No. 6. question I address myself to is this — was it necessary in
and others, an indictment for sedition, for the public prosecutor, who
High Court, lias averred that the words were ' seditiously used,' to set
1848. ' forth that the words were intended as well as calculated.
Conspiracy to produce the results ascribed to them ? If left out, is
^ ' """■ the offence complete — is the indictment charging the
offence equally good ? And if, when purposely left out
by the prosecutor, the indictment is good, is it necessary
that the jury should find what the prosecutor might thus
competently leave out as immaterial ? If the indictment
charging sedition is good, when it says the words ' sedi-
' tiously used' were calculated to produce the results in-
volved, but ex proposito leaves out the allegation that
they were intended, can a verdict be bad which finds
guilty of sedition, in so far as, that he used words calcu-
lated to produce the evil results, but omits purposely the
further and separate averment that they were used with
that particular intent ?
Distinctly, aiid in terms, the pannels' counsel did not
plead that an indictment would be bad, unless it was said
that the words were intended to produce the particular
results ascribed to them. It was said the proposition was
not admitted, but that they would waive arguing the
point. But the point is, in my judgment, at the founda-
tion of the whole matter — and no opinion can be sound
or satisfactory which is not based on the consideration of
the rule and practice of the Court on that leading point.
Let us see how the practice stands, — and this is the
more important, because in nearly all the cases to be re-
ferred to, the pannels were aided by counsel of the
greatest eminence and talent.
1. Berry and Robertson, 1793. Here, the question, if
doubtful, arose even on the major proposition, which set
forth, ' the wickedly and feloniously printing any sedi-
' tious writing or pamphlet, containing false, wicked, and
' seditious assertions, calculated,' &c., and then the pub-
lishing of any such. Then the minor merely said that
they printed and published, wickedly and feloniously, a
AND CIRCUIT COURTS OF JUSTICIARY. 73
' seditious' pamphlet. The counsel w ere Mr Wight and No. «>
,, T^, , , , , . . , , T. John Grant
Mr Fletcher — both zealous constitutional lawyers, cut and others.
no objection was stated to the relevancy, though remarks HighCourt.
were made as to the object of the pannels being only to isis.'^'
make gain by the sale — a purpose perfectly consistent conspiracy
with the seditiously publishing ; for, I believe, in nine ^ *""'
cases out of ten, gain, celebrity, collection of tribute, and
so forth, are the real motives, and that the parties speak-
ing or publishing the sedition, know that their trade
would be destroyed by any actual commotion ; and often
exhort to peace, at the v.ery same time they use the most
inflammatory and seditious language. The jury found
that the one printed and published, — ^the other published
only, — the pamphlet libelled on. This verdict was objected
to by Mr Wight, and afterwards also by Mr Henry
Erskine. The argument is most instructive. Mr Wight
contended that the allegation that the pamphlet was se-
ditious, or calculated to do so and so, was not affirmed
by the verdict. In that argument, the tendency of the
writing is taken to be the point to be established in a
case of sedition. Then he argued the criminal purpose
or illegality of the act, was averred in the indictment, in
the words ' wickedly, and feloniously ;' and that this, the
proper averment of the purpose or intention, was not af-
firmed by the verdict. In that debate, the illegality of
the act is properly taken on both sides to be averred in
that part of the indictment ; but it is not supposed that
the particular intent which might be ascribed to any par-
ticular words, was of the essence of the crime. As Mr
Henry Erskine well sums up his argument against the
verdict — The libel says, 1. That the pannels printed and
published the pamphlet ; 2. That they did this wickedly
and feloniously ; and 3. That the pamphlet was seditious,
and these facts must be found. The judgment on the
verdict might also be referred to in support of the view
I take of this verdict as a very important authority. But
I pass over that as of less direct application.
2. Smith and Memmons, 1793.-^Major, — wickedly and
74 CASES BEFORE THE HIGH COURT
No. 6. feloniously publishing any seditious writing, tending to
and otS. create a spirit of disaffection, and to excite tumult, &c.
High Court. 3. Skirving. — Major, sedition — Minor, Whereas a se-
me. ' ditious or inflammatory writing, calculated so and so, was
Conspiracy Sent to Skirviug to be circulated, he did circulate the
& Sedition. ^^^^ rpjjjg pg^^j. ^f ^j^g indictment was distinct and apart
from the after charge as to the Convention.
Mr Blair — ^who alone conducted that prosecution —
thought it necessary to state his views on the 2d part of
that indictment at considerable length, — the more so, as
we all know, because, from his absence at the other
trials (an absence not peculiar to them) a very false re-
port had been raised that he disapproved of the prosecu-
tions ; but, on the first part of the indictment, he simply
said he held the crime to be completely and well laid
in the libel.
4. Morton, Anderson and Craig — the major sets forth
only, ' uttering seditious speeches, tending to create,' &c.
I think the minor comes to the very same thing, as no
intent as to the particular words set forth is annexed to
them, different from the seditiously or wickedly uttering
them. This was the first case, I believe, in point of
time, and an argument was stated, though hardly amount-
ing to an objection. The Judges gave their opinions
seriatim on the indictment. Lord Henderland particu-
larly gives his opinion on the major I have quoted. I
think the rule of law is well stated by Lord Justice-
Clerk Braxfield, vol, xxiii. p. 15, especially in his refe-
rence to the case of blasphemy as analogous. He ob-
served, ' that it was no good defence to say, that the
' words here spoken were mere verba jactantia. They
' were obviously of a most wicked and seditious import ;
' and no. plea of rashness, wantonness, or conviviality,
' could be admitted as an excuse. His Lordship illus-
' trated this by referring to the horrid crime of blas-
' phenay, where, though the words uttered could be no-
' thing else than wind, or foolish in the extreme, still they
' were impious and wicked, and might, in certain cir-
AND CIRCUIT COURTS OF JUSTICIARY. 75
cumstances be cognisable and severely punishable by a No. c.
criminal court.' and others.
5. Muir — ^the major there described the publications High Court,
as calculated — as of such and such a tendency — as tend- isis.
ing to produce, &C. Conspiracy
In the minor a specific intention is in some cases dis- ^
tinctly ascribed to the pannel — in others not — according
to the nature and import of the words and publications.
A great deal is said of this, and some of the more
noted cases at this time, by persons who, I firmly believe,
never read the indictments, and confound the acts and
publications with their opinion of the punishment. I re-
fer to them as unquestionably relevant indictments for
sedition — whether parties might have concurred in the
verdict returned by such men as Mr Homer or not.
6. Alex. Leslie. — Major, sedition ; as also the wickedly
and feloniously circulating any seditious publication, or
any publication tending to vilify, &c. the established re-
ligion.
iUfmor-— averred the wickedly and feloniously circu-
lating seditious publications ; also writings tending to
vilify : the seditious publications are also stated in an-
other place as tending to alienate, &c. Then the blas-
phemous work is again described as tending, &c.
7. T. F. Palmer. — Major, wickedly and feloniously
writing any seditious or inflammatory writing, calculated,
&c. ; also wickedly and feloniously publishing any such
sedition.
Minor — described the writing as of a wicked and se-
ditious import. To that indictment elaborate objections
were stated, at extraordinary length, by Mr Hagart ; but
limited to this, viz., that the writings set forth even as
matter for the Court in the first instance, not calculated,
on sound construction, to produce the effects ascribed,
and were not of the import and tendency stated, but that
the scope and burden (as Mr Hagart put it) were diffe-
rent. In a very long, zealous, and elaborate argument,
that is the only objection taken.
76 CASES BEFORE THE HIGH COURT
No. 6. Ml' M'Conocliie, first Lord Meadowbank, puts his
John Grant /■ t_ • •
and Others answer OH the ground of the import of the writing.
High Court. The opinion of the Court assumes the import to b6
?848. ' the matter for decision. Indeed, if special intention
Conspiracy had been ascribed to any particular words, or had been
necessary in law, the short answer would have been, — the
import of the publication we need not consider, and is im-
material, since the particular intention with which special
words were written, must be averred and is to be proved,
and has not been averred although essential. No such view
occurred to any one. In that case, the pannel was as-
sisted also by Mr Clerk.
The case went to the Jury.
I am not sure that there is to be found any where, on
the whole, a better practical exposition of the law of se-
dition than in Mr Clerk's speech to the Jury for Palmer.
We have it revised in the State Trials by himself, and it
is a beautiful instance of that great power of discrimina-
tion, and masterly precision of language which he pos-
sessed in so eminent a degree, along with the highest
order of legal talent. In the whole of that speech he
admits that the import and tendency of the writing is the
point in sedition, unless the party has a legal object in
view.
After explaining the general right of the subject to
discuss such important objects as reform, with fervour
and zeal, he says — ' He who speaks or writes to raise
' discontent or disturbance, or to bring the Government
' into hatred or contempt, is seditious, and he whose
' speeches or writings have that tendency is seditious, un-
' less in either case the speaker or writer has a legal
' object in view.'
Then, when he comes, after a long general argument
as to the latitude belonging to the subjects of this coun-
try to comment on the terms of the publication in ques-
tion, his argument is not whether such and such effect
are intended; but very specially and particularly he
says — ' Gentlemen, — I will not contend that a writing,
AND CIRCUIT COURTS OF JUSTICIAKY. 77
' malicious, — seditious in itself, and calculated to raise No. b.
T • 1 1 1 1 o ^"^'^ Grant
' sedition among the people — can be excused by the fact and others
' that no sedition was raised. In general, it is true in High Court.
' criminal cases, that intention is not sufficient to crimi- °usl '
' nate, unless the crime be perpetrated. But, in cases conspiracy
' of sedition, I am disposed to admit that the intention
' is carried into effect, and the crime is committed by the
' act of publishing the seditious writing. But, gentle-
' men, what are the circumstances here ? It is not
' proved that the purposes of this society went any far-
' ther than a moderate and a national reform. The
' hand-bill complained of the very grievances which are
' always enumerated by reformers ; and it was not either
' intended or calculated to raise sedition. It is true,
' indeed, that every publication against the measures
' of Government must necessarily raise discontents in
' the minds of the people ; for no such writing ever was
' published with any other intention than to shew the
' people what their true intent was, and that it had not
' been consulted by Government. Discontent is un-
' avoidable where public measures are wrong or thought
* to be so. But discontent is very different from sedi-
' tion. The people may be perfectly quiet amidst the
' greatest discontents. To render a writing seditious, it
' must be intended or calculated to urge the people to
' actual violence, and how can it be said that the hand-
' bill is of that description ? Where is the excitement
' to illegal acts of any sort ?'
In the charge to the jury, Lord Abercromby, in a
most temperate, lucid, and fair charge, puts the question
exactly as Mr Clerk put it — whether the writing libelled
on be of a seditious tendency.
8. Stewart and Elder. — Major, wickedly and felo-
niously writing and printing any seditious libel : Minor
described it as seditious ; also which inscriptions were
obviously calculated,
9. Alexander Scott. — Major sedition, as also wickedly
and feloniously circulating and printing any writing of a
78 CASES BEFORE THE HIGH COURT
Noj6. seditious import, and tending, calculated, &c. Minor
and others, same.
High Court. Other cases of the same sort mis^ht be cited from that
Nov. 25. T rr.
1848. period, but there are others of a later date. It is sum-
Conspiraey cieut to refer to one, the most noted in recent times;
10. M'Laren and Baird, 1817, — which attracted great
attention. Major, sedition. Minor, states that they
wickedly and feloniously delivered seditious speeches, cal-
ctdated, &c. ; the same is said of the publication.
These pannels were very ably assisted, and I know
from my friend Mr Campbell, of counsel for M'Laren,
that Mr Clerk, who conducted for M'Laren, bent his
whole mind to the case, as zealously as he could have
done in younger life, and directed anxiously the state-
ment which Mr Campbell made on the indictment before
trial. Mr Campbell says the passages will be a matter
for sound construction for the jury. The relevancy was
not objected to. For the other pannel, Mr Jeffrey ended
his explanatory statement to the Court with stating, after
a short explanation, that the object of the publication
was to get money ; ' that as to relevancy, much will de-
* pend on the interpretation to be given to the words
' libelled on.' And that indictment went to the jury with-
out any expression whatever, annexing to the particular
words any special intention, or implying that, in addition
to being seditiously spoken, the words were intended, as
well as calculated.
Intended was left out in the indictment. The convic-
tion was in terms of the indictment, and a good verdict.
Intended is in this indictment ; was it necessary to the
charge ? I hold not. The jury leave it out. Then, if
not necessary to the charge in any form, how shall the
verdict fall, or be equivalent to one of not guilty ?
This indictment charges sedition in the major.
The minor sets forth that Ranken did openly and ' sedi-
' tiously,' at a public meeting on Burntsfield Links and
other occasions, utter certain language, and the same is
averred as to Hamilton ; and the indictment closes with
AND CIRCUIT COURTS OF JUSTICIARV. 79
the sreneral statement, that the whole or part of the No. e.
1 o % • 1 1 111 ^°^^ Grant
language above set forth, was intended and calculated. and others,
Now, that the whole of the averments in an indictment High Court.
need not be proved and affirmed by the jury, if what is \u%. '
of itself clearly relevant is found, is in the general case conspiracy
admitted to be dear law. That this indictment was *
perfectly relevant without the words intended, and with
calculated alone, I apprehend to be a point fixed by
authorities, and clear on principle. That that which was
unnecessary, need not be found, is a point also quite
clear in our criminal law and practice. Hence, in the
abstract, and in any other case, this verdict is unim-
peachable. But then, it is said that the omission, pur-
posely by the jury of ' intended,' negatives the whole aver-
ment of guilt in the minor, and renders the verdict one
of not guilty in the case of sedition. How that should
be, if ' intended' need not be in the indictment at all, I
have not been able to comprehend. But the whole
argument is founded on a complete misapprehension, both
of the legal principles applicable to our indictments, as
also to the crime of sedition.
I have already adverted to the misapprehension of the
principles on which our indictments are framed.
1. The proper averment of guilt in the minor in this
charge of sedition, is in the allegation that the pannel
did openly and ' seditiously/ and in presence of great
numbers, utter the language imputed to him ; the aver-
ment which follows is properly descriptive of the character
of the language so seditiously used. To add intended
to calculated in that description is really, when care-
fully considered, an allegation quite misplaced, as well as
unnecessary to complete the full averment of guilt. It
may be true that the exg,ct effects which the language is
calculated to produce, were also intended. But that is
not the necessary or proper averment of guilt in a case
of sedition in the minor. The averment of guilt in the
minor is in this, viz., that the party did seditiously utter
language calculated.
so CASES BEFORE THE HIGH COURT
J f^G ' ^' ^^® second misapprehension is in assuming that this,
and Others, the proper averment of guilt, is not affirmed by the ver-
HighCourt. dict wheu the Jury, combining, as every verdict does, the
1848. ' major and minor, with the latter of which the jury have
Conspiracy particularly to do, find the pannels guilty of sedition, in
^ ' '" ■ so far as that they used language calculated to excite po-
pular disaffection and resistance to lawful authority.
3. But the main misapprehension is in regard to the law
of sedition ; and, in my opinion, it is a very great and
serious misapprehension.
The crime of sedition consists in wilfully, unlawfully,
mischievously, and in violation of the party's allegiance,
and in breach of the peace, and to the public danger,
uttering language calculated to produce popular disaffec-
tion, disloyalty, resistance to lawful authority, or, in more
aggravated cases, violence and insurrection. The party
must be made out not to be exercising his right of free
discussion for legitimate objects, but to be purposely,
mischievously, without regard to his allegiance, and to
the public danger, scattering burning firebrands, calcu-
lated to stimulate and excite such effects as I ha^e men-
tioned— reckless of all consequences. As Mr Clerk said
in Palmer's case, ' He, whose speeches or writings have
'that tendency, is seditious, unless, in either case, the
' speaker or writer has a legal object in view.
Now, in this case, I apprehend that the law does not
look for or require, besides this illegal spirit, this general
dole or legal malice, the additional and special element
of the intention, or purpose, with reference to the pre-
cise effects which the words are calculated to produce.
If such purpose is also proved, the case will be one of
more deliberate, more dangerous, and more aggravated
sedition. But very often the precise effects which the
words are calculated to produce, are not at all what
the party intends, and still more, not what he has
brought his own mind up to, just because they point to
immediate violence. The party guilty of sedition in
uttering such language is often only playing the part of a
AND CIRCUIT COURTS 0? JUSTICIARY. 81
field orator, hallooed on by shouts from an excited and No. 6.
turbulent crowd — often of the worst characters : He has and others.
to sustain his part as a leader ; has to outbid in exaggera- High Court.
tion and violence the man who spoke before him ; has "sia. '
got so familiarized to violent and dangerous language, conspiracy
that he does not think how they may affect others ; has * Sedition.
to secure a liberty for bold language, and often to secure
pay for such achievements : He is aiming, perhaps, at
being chosen as a delegate ; thinks, perhaps, that by
intimidation he may concuss and frighten others into an
exaggerated notion of the numbers and power of those
who venture to utter such language : He is reckless as
to what he says ; thinks and cares little about it, if it
answers the object at the time ; but all the while he
may not desire or intend the precise effects which his
words are calculated to produce — it may be of instant
violence. Yet of sedition he is clearly guilty, if these
reckless words are calculated to produce such results.
I take what appeared in another part of this case as
a very apt illustration of how little the intent to produce
the actual effects which the words are calculated to pro-
duce, enters into the guilt of sedition, in point of law, as
a necessary element. Your Lordships, who sat with me,
will recollect that, in reference to the part of the case
charging conspiracy, and the purpose of forming a Na-
tional Guard, for effecting changes in the constitution by
force — as to which the jury very correctly found the
charge not proved, but only not proved — we heard a
great deal of the language and proposals of a person,
whose warlike language (for it is lamentable to think how
commonly and frequently the purpose of arming seemed
to be talked of) obtained for him the nickname of Briga-
dier-General. Now, at a public meeting, in a hall in
Edinburgh, before 600 or 700, at which one of thepannels
was not present at all, this individual — I am assuming the
facts for the sake of illustration, of course not as true
— openly and distinctly purposed and exhorted the meet-
82 CASES BEFORE THE HIGH COURT
johl°Grant ^"S ^^ ^"'"^ ^ national guard of 1600 men, in companies
and Others, of 400, two of whicli Were to be armed as musketeers,
High Court, and the other two as lancemen, and enlarged on the
Nov. 25. "^
1848. necessity of chartists and all others resorting to arms ;
Conspiracy which seditious proposal was prefaced, one of the wit-
& Sedition. , ^, / , . , ^ i i x j
nesses who opposed it, stated, ' with a great rhodomontade
' of poetry ;' and Mr Logan, whose object was to shew
that his clients had always discountenanced this indivi-
dual, told us, as a proof of the extravagant pitch of
heroism to which he worked himself up (though that part
of the speech was not in evidence,) that he, at last,
declared that he was ready, and hoped, to head this body
against Her Majesty's troops, and that he had no doubt
he would rout all whom he might encounter, and out-
general the Duke of Wellington himself. Now, if an
indictment had been preferred against this party, who
was skid to have left the country, charging sedition, and,
in the minor, setting forth that he openly and seditiously,
at a public meeting, made this proposal, and used such
language, and had further averred that the language was
intended and calculated to stir up the people to imme-
diate insurrection under him, and to array themselves
under him as a leader against Her Majesty's troops ; and
if such proposal and language had been proved, I suppose
no Jury of reasonable men (unless the defence of insanity
had been established,) could have hesitated to say that
such a party was guilty of sedition in using language of
such import and tendency. But it would have been very
difficult, probably, to satisfy them, at least it would have
been very difficult to satisfy me, that this most redoubt-
able personage did really intend, or desire, to lead any
attack against Her Majesty's troops, or to encounter, I
do not say, the Duke of Wellington, but even to stand
the steady fire of a Serjeant's party of the very oldest pen-
sioners on the list. That would have been about the last
thing that I should have believed, that he had any intention
of doing. Yet, of sedition, such a proposal, and language
so calculated, would justly convict a party. This is just
AND CIRCUIT COURTS OP JUSTICIARY. 83
the distinction applicable to this case and verdict, ^.nd a Noj_b^^^
practical illustration, which shews the principle of the and others.
law, and the principle of our indictments. The exact High Court.
' r r Nov. 25.
effect which the words are calculated to produce, is one i848.
thing that may or may not be intended. The orators, on Conspiracy
such occasions, often know very little, and think very
little, of the effects which their words are calculated to
produce. But the wilfully and rciischievously using such
language against their allegiance, and against the peace
of the country, and the rule of law and order, makes
them guilty of sedition.
This wilful, disloyal, and mischievous spirit in the use
of such language, whereby popular disaffection and re-
sistance to lawful authority is directly encouraged and
excited, makes the crime of sedition, even although the
language used may not have been intended to produce
the exact effects which it is calculated to do.
Besides the general, unlawful, wilful, and disloyal
spirit, which is the illegal purpose charged by the word
' seditiously/,' to require that the precise intention to pro-
duce the exact effects which the words are calculated to pro-
duce, sbould be proved over and above a finding that the
party was seditious in using the language, would, in truth,
surround much most mischievous and dangerous sedition
with complete impunity ; for 1. such additional intention
it may be very diflBcult to prove ; 2. The whole appear-
ance, and manner, and conduct of the party, of his asso-
ciates, and of the meeting, may really satisfy all that the
exact effects which his words were calculated to produce,
were not really and solely designed by him. The man
may have been too excited to have any such deliberate
cool design as instant insurrection before him, although
his words were directly calculated to produce that result.
Nay, one might be quite satisfied of the reverse, — that his
object was to keep up great and alarming discontent and
agitation for his ovm base purposes, to secure weekly or
yearly contributions, as a reward for his trade; and that
he well knew that any actual outbreak would at once
84 CASES BEFORE THE HIGH COURT
Jota Grant ^^^^ *° *^^ extermination of his calling, and that such re-
and Others, gultg "were what he most dreaded, though he was using
HighCo^urt. language well calculated to produce these effects, unless
1848. he at the same time cunningly kept under, by his iniluence.
Conspiracy the Spirit he was tryins: to rouse. But though a Jury
& Sedition. , „ , ■' ° . , . . .1 j.
shall be satisfied upon that pomt, is the crime not that
of sedition, if the language is calculated to produce the
results, and if the party is acting unlawfully, contrary to
his allegiance, and to the peace of the realm, in using
such language in the circumstances, and on the occasion
in question, having no justification in object or occasion ?
Hence, then, the proper guilt of sedition (of that kind,
I mean, which is here prosecuted,) consists in the unlaw-
ful and disloyal spirit in which, contrary to the subject's
allegiance, and in violation of the peace and order of
society, and of the rule of law, language or publications
are used and circulated, calculated to produce, as here
found, ' popular disaffection and resistance to lawful
' authority.' And it is a misconception of the law to
suppose that the effects which the language is so calcu-
lated to produce must further be specifically intended,
so that the Jury must find that the words were intended
as well as calculated to produce these results. If such
had been the law, every conviction on an indictment not
containing that additional averment in the minor, has
been a bad verdict. But I hold the law to be fixed by
the cases in point of principle and practice.
If the view of the law I have now stated meets with
the concurrence of the Court, then, most clearly, the ob-
jection to this verdict wholly fails.
I have carefully reviewed the authorities, and I am
satisfied that this view is the sound result to be derived
from them all.
It is part of the very misconception I have adverted to,
to take the general passages descriptive of sedition, and in
the words therein employed, relative to the unlawful
purpose and spirit of the party, necessary for the crime
of sedition, to be applicable to the construction of an in-
AND CIRCUIT COURTS OF JUSTICIARY. 85
diotment framed like the present, and to the particular ^ No- 6-
'■ . * John Grant
and unnecessary averment contained in the present, over and others.
and above the averment that the language was openly and High court,
seditiously spoken, viz. that the same was intended, as lah.
well as calculated, to produce such and such results. I Conspiracy
do not so understand the passages in Hume at all. I do '"•>'"'"•
not think they have the least application to the very
special question as to this particular and specific aver-
ment, that the words were intended to produce the re-
sults mentioned.
At the same time, I am not prepared to adopt the
general description of Hume as to sedition, as of perfect
accuracy or precision, even as a general exposition of the
law. And I cannot state, consistently, the grounds of
my opinion, without meeting directly the passage founded
on. I should say that his doctrine is too unqualified and
too abstract on both sides, that it restricts too much, in
words at least, the subject's right of discussion and speech,
and in what is to be proved, requires more to be esta-
blished on the part of the prosecution than the nature of
the offence, the general principles of the law, and the
peace and welfare of society, prescribe as essential elements
of the case. He seems to put the crime of murder and
sedition on the same footing ; in that I differ ; and he does
not seem to me to draw the distinction fully between
sedition and those treasons in which a special intent is the
offence. Indeed some of his expressions seem more ap-
plicable to such treasons than to sedition.
In his chapter on Sedition, Hume refers back to the
part of his work on Leasing-making, for his explanation
of the ' general notion of the offence of sedition,' as he
terms it, that he need not further describe it ; and says,
p. 352 : — ' It is further to be observed concerning lease-
' making, that it always has relation to the King, or (if
' that is not abolished by the long disuse) to some emi-
' nent individual connected with the Court, and can only
' be committed by means of false speeches, or reproach-
' ful and contemptuous words thrown out against him,
86 CASES BEFORE THE HIGH COtJRT
No. e. * But sedition is a crime of a far wider and a more various
and Others. * description, as well as of a deeper character, and may
High Court. ' equally be committed in relation to any of the other
1848. ' ' parts of our frame of government, or to any class or
Conspiracy ' Order of our society, and though no special calumny is
& Sedition. . ejaculated against the King or any other individual, —
' as by forming combinations, taking resolutions, spread-
' ing doctrines and opinions, or, in general, pursuing any
' such course of measures and actions as tends directly to
' the resistance of the legislature or established govern-
' ment, or to the new modelling of the state without the
' authority of law. No invective, therefore, how violent
' soever, against monarchy in general — ^no abuse, the most
' outrageous, of the British Constitution — no proceedings,
' though tending ever so plainly to abolish that venerable
' system, and set up a new form of government in its
' room, — would justify the charge of leasemsiking. Be-
' cause, though involving the state and office of the King,
* as a part of the constitution, such projects are levelled
' against the whole system, and are not moved out of
' personal grudge to the prince upon the throne, but
' spring from a deeper and more malignant principle, and
' employ also more direct means and more extensive,
' than the mere slander of the character and conduct of
' the King. Thus sedition is a crime against the state,
' and holds the next place after treason, to which it is
' nearly allied, and which it very often, but by a short
' interval, precede. The other is a personal offence or
' verbal injury offered to the King, and is considered by
' the law in so much a more serious light than other
' wrongs of this class, partly on account of the peculiar
' regard it has to his peace and tranquillity, and partly
' by reason of the possible evil influence of such an ex-
' ample on the aifections and dispositions of his subjects.'
This explanation, to which Hume himself refers, as
his proper description of the offence, certainly givies no
countenance to the argument against this verdict. And
it was an occasion, in which, as he himself says, great
AND CIRCUIT COUllTS OF JUSTICIARY. §7
discrimination and precision was necessary, viz. in draw- No. b.
.,,..., , . , . , John Grant
ing the distinction between leasmg-making against the and others.
sovereign, and sedition. Whether, after the Union, any High Court,
such distinction can be recognised, or whether the in- i848. "
stances he gives of the former are not proper cases of Conspiracy
seditious libels, I need not consider. The remark as to
sedition being nearly allied to treason, and which it may
often, but by a very short interval, precede, may be correct
to the limited extent, that parties guilty of the one may be
led into the other. But if it imports, as it seems to do,
as matter of doctrine, that the two crimes are nearly
allied, in the elements, which are essential to the several
crimes, I dissent wholly from the opinion. Such con-
structive treasons as were attempted to be made out in
the case of Hardy and Tooke, were indeed allied to sedi-
tion, or rather were nothing but sedition. But the dis-
tinction between the crimes is as broad as law and reason
can make out any line of difference.
I notice this remark, because I trace the influence of
this ' notion,' that sedition is nearly allied to treason,
on the expressions and opinions which occur in the sub-
sequent part of the work. And this tendency to view
the two as so closely allied, might arise from the fact,
that the same facts had been founded on in the prosecu-
tions in Scotland for sedition, which were so strenuously
urged in England, for the conviction of Hardy and Tooke
of treason. The error is, however, a very grave one ; it
tends to make the law of treason too easy, the proof of se-
dition more difficult than law or the reason of the thing
requires. There is no alliance in the law between them,
to use Baron Hiime's expression, or rather, to use a more
correct legal expression, there is really no identity in the
essential elements of the two offences. 1. The law of
treason is wholly statutory ; of sedition it is by common
law, both in England and Scotland. 2. In treason, un-
less when war is actually levied, a certain specific intent
is of the very essence of the crime, and unless that speci-
fic intent is. proved, the general purpose of commotion,
88 CASES BEFORE THE HIGH COURT
No. 6. confusion, and a sreneral disloyal mischievous spirit, lead-
John Grant ° •' i_ tt j.v
and others, ing to most daugerous evils, is not enough. Hence trie
High Court, specific intent of the mind is, in most cases, of the essence
1848. ■ of the crime of treason. I hold this to be the turning
Conspiracy poiut of the case, and in sedition there is no such special
& Sedition. j i- ., j i
and limited law.
Baron Hume does, however, while he refers back to
his former description of sedition, as his explanation of
the general notion of the crime, go on in the chapter on
Sedition with a general sentence, not very consistent, I
admit, in expression, or, perhaps, purport, with the
passages to which he thus refers as his proper text on
the subject : He says, p. 553 : — ' I had formerly, in draw-
' ing the line between sedition and leasemaking, a pro-
' per occasion to explain the general notion of this
' offence. And I shall not now attempt any further to
' describe it (being of so various and comprehensive a
' nature) than by saying, that it reaches all those prac-
' tices, whether by deed, word, or writing, or of whatsoever
' kind, which are suited and intended to disturb the
' tranquillity of the state — for the purpose of producing
' public trouble or commotion, and moving his Majesty's
' subjects to the dislike, resistance, or subversion of the
' established government and laws, or settled frame and
' order of things.'
Now, if this is to be taken as a practical rule, accord-
ing to which indictments are to be framed, and juries to
be directed, and as referring to anything beyond the
general malice and illegal purpose, which is involved in
any man uttering seditious words without a legal excuse,
I must very distinctly say that I cannot acquiesce in that
as a correct definition of the law, or leave the protection
of society to rest on the requisites there stated as neces-
sary to constitute sedition — if the learned author meant
more than what is stated in Starkie, in a passage I shall
afterwards refer to, as to legal and technical malice or
purpose.
V But is the author consistent as an exponent of consti-
AND CIRCUIT COU&TS OF JUSTICIARY. 89
tutional law, when in the next sentence he says : — * Under No. 6.
. . 1 1 /. ,1 Jol"" Grant
' this description would fall a work, such as it has been and others.
' reserved for the wickedness of the present age to pro- High Court.
' duce, which should teach that all monarchy and heredi- 1848. '
' tary rank, or all clerical dignities and establishments of conspiracy
' religion, are an abuse and usurpation, contrary to reason * ^'^'*"'"-
' and justice; and unfit to be any longer suffered. Or,
• though the piece should not set out on so broad a prin-
' ciple as this ; if it argue, like many compositions which
' have lately been offered to the public, that the power
' of the King is overgrown, and ought at any hazard to be
' retrenched ; or that the Commons are a mere nominal
' and pretended representation of the people, and entitled
' to no manner of regard ; or that the whole state is fall
' of corruption ; and that the people ought to take the
' office of reforming it on themselves. All exhortations
' of this kind, whether any commotion follow on them or
' not (for if any do follow, it will not depend on the
' degree, fashion, and immediate occasion of that disturb-
' ance, whether it is not treason in those who partake of
' it), are undoubted acts of sedition ; being calculated and
' employed for the direct purpose of loosening the hold
' which the Government has of the opinions and affec-
' tions of the people, and thus preparing them for acts of
' resistance or aggression.'
On such publications I should say that the question
for the jury is practically very different,— are they really
abstract discussions, or are they calculated to alienate
the people of this country from their allegiance, and
to produce insurrection here, as a result clearly following
from the way the questions are treated? If so, then,
whether intended or not, it is enough that they are so
calculated — and so not very consistently the author
holds : for he even includes within the crime of sedition,
treatises, although only general, and only indirectly cal-
culated to lead to such ends.
Now I require less than his general paragraph here
requires, and much more to make out sedition, than his
90 CASES BEFORE THE HIGH COURT
No. 6. illustration states to be necessary. Every other illustra-
John Grant ^ ' .
and Others tion and case he gives, is stated in terms directly mcon-
High Court, sistent with the general passage on p. 553, if it is to be
1848. ' construed in the way the pannels contend for.
Conspiracy E^ 0. — Speakinff of the Scottish statutes which made
& Sedition. ^ „ ,.. , . , , , ,
some acts of sedition treasons, which were repealed by
the 7th Anne, c. 21, and the words of all of which are
against the strain of that passage on p. 553. He says,
p. 555 : — ' Now, each of these enactments, in its order,
' is an acknowledgment and a confirmation of the doc-
' trine of the common law ; proceeding, as they all do, on
' the notion of the wickedness of all such practices as
' tend to impugn the principles, and shake the security of
' the established government, or to draw from it the re-
' verence and aifections of the people ; and raising such
' offences from their natural rank of sedition to that of
' treason, by reason of the exigency of the times. Being
' now again lowered from that degree by the statute
' 7th Anne c. 21, which abolishes the peculiar treasons of
' the law of Scotland, these, and all other instances of
' transgression in the like sort, as mala in se, and evils,
' too, of a very high order, retain, of course, their proper
' place and quality as acts of sedition at common law ;
' whereby the offenders are justly exposed to the highest
' arbitrary punishment. On these grounds, many con vic-
' tions have of late years been obtained.' And in a note,
the case of M'Laren and Baird, among others, is quoted
as an illustration of ' these grounds'
Again — in distinguishing between a publication excit-
ing to riot, and one seditious, he says, p. 558 : — ' But if
' any one print and publish a discourse, wherein he de-
' scribes the Legislature as corrupt and incompetent to
' its functions, and advises to hold a convention of the
' people, who shall reform the government after their own
' fancy, or on a new and more popular system, proposed
' in this discourse — then is the author guilty oj real se-
' dition ; for he has taken a most matured step or mea-
• sme towards disturbing the tranquillity of the State.'
AND CmCliIT COURTS OF JUSTICIARY. 91
But that same page illustrates how much his views No. 6.
were influenced by the notion that the law of sedition and others.
and of treason were nearly allied in principle ; for he HighCoart.
says, p. 558 : — ' The crime of sedition lies, therefore, in isis, '
' the stirring of such humours as naturally tend to conspiracy
' change and commotion in the state. So near, indeed,
' is the alliance between sedition and treason;, that, if, in-
' stead of sowing the seeds of a hostile disposition to the
' government, or preparing such materials as in time may
• kindle into a flame, the offender shall seek the same ob-
' ject more immediately, by a direct and definite exhor-
' tation to the people to rise at that particular season, as
' advantageous for gaining these ends ; this measure, like
' a consultation to levy war, seems to be nothing less
' than an act of compassing the death of the King ; being
' a decided and a material step towards the doing of that,
• which cannot be done without the plain danger of the
' Sovereign's life.'
Now, on this passage I must observe, that no two
offences seem to be more directly conttasted in the
elements necessary to constitute guilt, than sedition and
treason, here said to be allied — I should say, even here
contrasted — the one consisting in the tendency to pro-
duce general disaffection, which may never lead to
actual outbreak ; the other, in the direct object or intent
of immediate insurrection. The former may be far more
mischievous ; for open treason is easily dealt with-— is
easily put down — often puts itself down, and generally
expires and burns out in the act of kindling it. But in
the latter there is direct, immediate design ; in the
former, the effect which the act is calculated to produce,
is what is 'looked to, and for that the party is justly
amenable if he has no legal object — for the effect is most
dangerous, and the speech calculated to produce that
effect, is, as Mr Clerk says, seditious. The distinction
between sedition and treason is then as broad as the ne-
cessity in the latter offence of positive design of an im--
mediate insurrection can mark any such difference.
92 CASES BEFORE THE HIGH COURT
Jota Grant ^* '^ ^^^ agreeable, nor is it often necessary, to make
and Others, these Comments on passages of any institutional writer,
HighCouit. especially of one whose authority is so great, and whose
1848. services to the law are so incomparably beyond that of
Conspiracy any Writer on any branch of the Law of Scotland, except
Lord Stair. But when we are required to lay down the
public law of the realm on matters so important to the
peace and good order of society, and in reference to the
rules which must restrain within the duty of allegiance,
the right of free speech and of constitutional agitation of
all questions in which any classes of the subjects are in-
terested, we are bound very carefully to consider the
authority quoted to us, and not to surrender our superior
and higher province of Judges to the opinions of any
private author, however eminent.
If the passage in Hume, founded on by the pannels,
really bears the construction they put on it, or rather, I
should say, is applicable practically in such questions as
the present technical point, then I am constrained, but
without any hesitation whatever, to deny that it is an
accurate exposition of law.
I shall not pursue the subject further. I will only ob-
serve, in conclusion, on this subject — that when Hume
puts murder and sedition as crimes analogous in prin-
ciple, I think he brings out very prominently the error
which pervades the general passage on sedition founded
on by the pannels. So far from holding that any
such analogy exists, so as to restrain within correspond-
ing limits the two offences, I desire to say decidedly,
that I should hold the crime of sedition in itsf analogy
or corresponding principle (if such is at all a safe prin-
ciple of judgment), to answer to the analogy of all
charges of culpable homicide, of more or less aggravated
character, as well as to, the more direct intent which is
in cases of murder, and may be also in sedition.
A party is legally answerable for the death of another,
caused by his unlawful actj, calculated to produce such
results, although he may not have intended any such
AND CIRCUIT C0UKT8 OF JUSTICIARY. 93
catastrophe, if he acted recklessly, and without regard to N"- 6.
,. /. 1 -cr 1 . . „ ., -John Grant
the safety or others. Yet he is not in all cases guilty of and others.
murder, hut of culpahle homicide. High Court.
And this is the corresponding case in analogy to sedi- uh. '
tion, if such analogies are not most unsafe grounds for Conspiracy
legal reasoning. In sedition, the effect of resistance to law-
ful authority, as an actual result to follow from the words
used, may not have been intended by the party ; but if
the language is calculated to produce that result, is sedi-
tiously uttered, contrary to the subject's allegiance, and
to the danger of the peace of the realm, I hold, without
doubt, that the crime of sedition is completed.
Still the authority of Hume cannot be used against
this verdict, except by mistaking and confounding the
question as to the general doctrine with the application
of the doctrine to our indictments.
I think the law is more corectly stated by Mr Clerk,
in the defence for Palmer, which I have already adverted
to.
Neither do I think a correct use has been made of one
passage, or rather of one word in a passage, in the charge
of my venerable, predecessor to the Jury, in the case of
M'Laren and Baird. In the first place, on turning to
the original edition of that report, from which the copy
in the state trials is printed, I do not find the least trace
that that charge was afterwards revised by his Lordship.
On the contrary, in the preface, Mr Dow, who certainly
had not attained to the accuracy of modern reporters,
not only does not state any such authority and sanction,
but apblogizes for the great difiiculty of preparing a
correct report. And the report of the charge is intro-
duced in the following somewhat apologetical manner, —
' The Lord Justice-Clerk addressed the Jury in the fol-
' lowing manner,' different from the reports of the speeches
of counsel, and certainly implying that it is but an im-
perfect report. The Lord Justice-General informs me
that he has not the slightest recollection of having revised
his speech ; that he is sure Mr Dow never applied to him
94 CASES BEFORE THE HIGH COURT
No. 6. for any such purpose, in any case at all, and, therfefore,
a^d othera. that the verbal accuracy of that report of his charge
High Court, ought not to be relied on as any expression of any advised
Nov. 25. . . »,.
1848. opinion 01 bis.
Conspiracy Then, again, Mr Jeffrey's argument as to intention, on
& Sedition, ^jj.^jj jjg ^^^^^ ^^j. ^ direction, wholly related to the
general unlawful purpose which the words wickedly and
felmiously in that indictment implied, or which ' seditious
' ly' implies in this, and did not relate to the intent to pro-
duce the exact results which the language was calculated
to produce. This, I think plain, on reading his speech,
which looks as if it had been corrected. It is to that general
doctrine, in the law of sedition, that a part of the charge is
directed. But, I own, I can the less rely on the verbal
accuracy of that report, for criminal tendency and criminal
intention are used as exactly equivalent expressions in the
sentence in question, and, therefore, in this argument, that
report really cannot give us correctly what was stated, or
clearly would be an authority against the pannel's argu-
ment.
As I read the charge, I do not think it had any refer-
ence to the special point here raised, even indirectly.
Looking to all other practical expositions of the law, I
find the law stated exactly according to my apprehension
of it. I say practical expositions, for I value a direction to
a Jury, by Judges of authority, intended to guide them, or
the collection of the law therefrom deducible in works
having direct reference to the way a Jury is to be directed,
as far more useiiil than mere general definitions of the
crime in the abstract.
I concur entirely in the way the law is stated for
practical objects, in Starkie on Libel, in the Criminal Di-
vision of his book, 2, 129, 130 ; Blasphemy, 140, 141,
147, 151-2 ; 2 Starkie, 175: By Lord Ellenborough, at
p. 177 ; again at 182-3 — which very important — as to the
distinction between the unlawful purpose and the sort of
intent which in this indictment is superadded very erro-
neously and superfluously, as to the special results which
AND CIRCUIT COURTS OF JUSTICIARY. 95
the words are calculated to produce. So Lord Holt put ^ ^°-J-
'■ ^ John Grant
the matter in a case of great note, 188." See also Lord and others.
Ellenborouffh, 193; affain p. 207 and 216. On this High Court.
^ . ° , , . , , Nov. 25.
1 observe, that there is nodistmction in principle as i848.
to the offence of sedition, whether it is committed by Conspiracy
language or by publications — very great difference, in-
deed, as to the sufficiency of the proof, as to the allow-
ance to be made for the inexperience and temperament
of the speaker — the extent of the mischief, and such like
considerations, but none as to what constitutes the of-
fence, 217.
As to intention, again, at 240, 244, 258, the passages
are most material, and directly applicable to this case.
' It is, however, important to observe, in respect of this
' class of cases, where the intention of the publisher, is
' the test of civil or of penal liability, that with a view to
' exemption from criminal as well as civil responsibility,
' the mere abstract intention of the party cannot protect
' him in the absence of facts, which constitute an occa-
* sion recognised by the law. The law allows no man
' to defend himself by saying, ' I did an act, in itself in-
" jurious, mischievous, and illegal, but I did it with an
" excellent intention.' And it must also be remarked,
' that a publication not warranted by the nature and
' exigency of the occasion, cannot be justified in a crimi-
' nal any more than a civil proceeding ; for if the occa-
* sion does not justify or excuse the act, neither, on the
' principle just adverted to, can mere abstract good in-
' tention supply a sufficient defence.'
Such is, as I understand, the purport of the proposed
definition by the Criminal Commissioners in England,
when the whole of their passage is taken : — ' Whosoever
' shall maliciously compose, print, or publish any sedi-
' tious libel, expressing or signifying any matter or mean-
' ing tending to bring into hatred or contempt the person
' of Her Majesty, or her government, or the constitution
' of the united kingdom as by law established, or both
Houses or either House of Parliament, or to excite Her
96 CASES BEFORE THE HIGH COURT
No. 6. ' Majesty's subjects to attempt the alteration of any
and othTra. * matter in Church or State as by law established, other-
High Court. ' wise than by lawful means, shall incur the penalties of
^Ts'if.' ' tlie eleventh class.' Here, the word ' intended' is equi-
Conspiracy valcut in reasoning and legal import to * wickedly and
& Sedition. , feloniously' or ' seditiously.' It is not used with refer-
ence to any intent directly to produce the precise results
which the language of the libel tends to produce. The
8th article of the same section also shows this to be their
meaning ; and the above definition distinctly comprehends
and supports this verdict as suflSicient when applied to
the indictment.
Concurring in the view of the law as thus explained,
it appears to me to be very clear, that a verdict finding
the parties guilty of sedition, in so far as that they used
language calculated to excite popular disaffection and
resistance to lawful authority, on this indictment, is a
good conviction in point of law, and that, on the motion
of Her Majesty's Advocate, sentence must be pronounced
on this verdict. But I must add, in conclusion, that it
is matter of satisfaction to me, that the Jury did leave
out the word intended, in the special way in which it was
inserted in this indictment — not only because the case is
thereby presented to us in a much less aggravated light,
but also because if I had been on the Jury, as the more
serious charge had not been proved, I believe that I
should have returned the same verdict with that which
is recorded.
LoED Mackenzie. — I concur. I think the crime of sedi-
tion is sufficiently constituted by using, whether in print-
ing, or writing, or orally, language calculated (which, of
course, means plainly calculated) to excite popular disaf-
fection, and resistance to lawful authority, provided this
be done wickedly or seditiously, i. e. without lawful jus-
tification or excuse. I do not think that to constitute
sedition, it is essential that there shall be in the delin-
quent a desire or intention to excite this disaffection and
insurrection, or resistance, provided he intends to use
AND CIKCUIT COURTS OF JUSTICIARY. 97
the words, plainly calculated to excite these, and uses No. 6.
them ; and that without justification or excuse. It seems and others.
to me clear, that this last, i. e. using the words, is enough High court.
to cause the evil of the crime, i. e. danger to the public, and "gig. '
that the want of justification or excuse is suflRcient to make conspiracy
the committer of it answerable criminally. And if such ^ Sedition.
an act be a crime at all, if it be not lawful, it can be no
other crime than sedition We never could say, that it
was a crime, but not sedition, and so not falling under
the recent statute, which limits the punishment of sedi-
tion, blit does not limit the punishment of any other
crime. Can we then hold such conduct not to be crimi-
nal at all ? I think that impossible.
Put the case, for instance, that a man, without any
justification, or excuse, prints and publishes a pamphlet,
containing words plainly calculated to excite popular
disaffection and insurrection, or resistance to lawful
authority ; and that this is proved against him ; but that
he proves, per contra, that his previous conduct was highly
and zealously loyal ; that accordingly, he had at first re-
fused to print the pamphlet, and had at last reluctantly
yielded to do it, only for a large bribe, and afterwards done
his best to counteract its effect — still he would be guilty
of sedition. True, his desire and intention would ap-
pear to be only to get money. But, with that desire
and intention, he acted without justification or excuse,
and in disregard of law, and printed and published what
was in itself manifestly dangerous to the public. He
therefore was not innocent but criminal, i. e. seditious.
Or say, that a man did the same thing, moved by
threats and fear, but not such fear as amounted to a
legal justification — he might say he had no intention to
raise disaffection, or resistance to lawful authority — but
that would not sufiiciently defend him from a charge of
sedition.
Or, say he did it only to shew his eloquence and inge-
nuity as Rousseau is said to have written against the ex-
isting institutions of society, after at first intending to
G
98 CASES BEFORE THE HIGH COURT
No. 6. display his talents on the other side, and being advised
John Grant , 7, • , „
and Others, by a fnend that the side of innovation was best for
High Court, shewing off talent.
°848. ' Or, suppose he did it only to frighten Government or
Conspiracy Parliament into some measure which he favoured, not
& Sedition, ^j-yjiy desiring or expecting actual insurrection or dis-
alFection to take place.
In all these cases, and many others that may be ima-
gined, the person must be guilty of sedition, by doing
wilfully, and without justification or excuse, an act of a
seditious tendency.
It is said, Mr Hume defines sedition to be, not only
calculated, but intended to excite disaffection and trouble
in the State. But the passage cited for the pannels has
not itself, the appearance of precise or accurate defini-
tion ; nor can I believe, that Baron Hume in it at all
contemplated the question, whether the intention to ex-
cite disaffection or trouble was essential. For if he had,
he would have followed it up by a commentary on that
branch of the definition, of which I see no appearance
whatever. On the contrary, he says, vol. i. p. 354 :• —
« The treason in all these cases is the same, in all mea-
' sures of this description, by exasperating the multi-
' tude, and infecting them with jealousy and dislike of
' the established order of the state, tend directly to a
' breach between sovereign and subject, and to fill the
' realm with trouble and dissension. To prepare which
' miserable calamity, can no more be doubted to be a
' cognoscible crime, and one too of a high deg^ree, than
' that it is a crime to partake of the very measures of
' resistance and violence, if such follow, to which these
' exhortations have induced.
' The characteristic of sedition lies in the forwarding,
' preparing, and producing such a state of things as may
' naturally issue in public trouble and commotion.
'The crime of sedition lies in the stirring of such
' humours as naturally tend to change and commotion
• in the state.'
AND CIRCUIT COURTS OF JUSTICIARY. 99
And all his reasonins; is applicable to sedition of the No. 6.
T 1 . 1 John Grant
nature i have stated. and others.
Erskine speaks iii the same way, though, no doubt he High Court.
does not sufficiently discriminate sedition from leasing- i848. '
making, (Tit. iv. B. iv. § 29.) He says, — ' Verbal sedi-' conspiracy
' tion, which in our statutes gets the name of leasing- ^ ^'^^^'°"-
' making, is inferred from the uttering of words tending
' to sedition, or the breeding of hatred and discord be-
* tween the king and his people.' He says nothing of
intention.
But our practice is what affords the most important
authority in aid of what is in itself reasonable. On that
I need not go over what your Lordship has fully treated
already.
Then, if such be the nature of sedition in our law, how
stands the present case ?
The indictment sets forth that the pannels seditiously
used language, which is rfecited, and which appears to be
very plainly in itself of a seditious nature. And then it
proceeds : — ' And the whole or part of the language
' above set forth, as used by you the said John Grant,
' Henry Ranken, and Robert Hamilton respectively as
' above libelled, was intended and calculated to excite
' popular disaffection, commotion, and violence, and
' resistance to lawful authority.'
Now here, in the view of the law I have given, the
statement of that language, and the statement that it
was used seditiously, and calculated to excite popular
disaffection:, and resistance to lawful aiithority, was itself
a sufficient charge of sedition. The statement of its be-
ing ' intended' to excite these was not essential, but in-
tensive, raesintto aggravate the charge, not to constitute it.
So stands the charge. The verdict is — (Beads verdict),
and a finding, in like terms, by a majority, is added
against the other pannel. And the jury explained, that
they omitted the word ' intended,' not meaning to find
that.
Now, I can regard this as nothing else than a finding
New York Life Ins. Co.
LAW LIBRARY,
ST. PAUL BUILDING.
100 CASES BEFORE THE man COURT
jote Grant ^^ ^^^ pannels guilty of the sedition libelled, in so far as
and Others, charged with seditiously using words calculated to excite
High Court, disaffection and resistance to lawful authority, though
Nov. 25. .11 . „ . . . ,
1848. not With the aggravation of intention to excite these.
Conspiracy And if that was, as I have said, a sufficient charge of se-
dition, the conviction of it must be a sufficient conviction
of sedition. It is a conviction of guilt and of sedition
under this libel. It implies, therefore, that the words
were used, not justifiably, or excusably, but seditiously,
calculated to excite disaffection and unlawful resistance,
and so is a conviction of legal sedition. The limitation
of the finding makes the sedition less aggravated, and
must lighten the sentence. But it cannot warrant ab-
solvitor.
The finding in this case is not ambiguous. It cannot
mean, that the pannels used the words justifiably or ex-
cusably, for then they would not have been found guilty
of sedition, or guilty at all ; but not guilty. It must
mean, that they were guilty of the sedition libelled, as
far as they used the words.
I need say nothing of the competency of a jury find-
ing part only of what is libelled. It is not disputed,
and is warranted by the ordinary style of our indict-
ments— * all which, or part thereof, being found proven,
' you ought to be punished with the pains of law,' &c.
Lord Moncreiff. — I paid all the attention in my
power to the argument on the nature and effect of this
verdict, and I have since considered very carefldly the
whole matter, and examined all the cases on the subject
as I find them variously reported.
It is undoubtedly a mitigated verdict, with reference
to the charges in the indictment. It finds the very
serious charge of conspiracy libelled not proven. It
also finds John Grant, who was indicted along with
Ranken and Hamilton, not guilty of the remaining
charge of sedition. But it finds the parties now at the
bar guilti/ of sedition in the particular terms expressed
in the verdict : — ' Unanimously find the panel Robert
AND CIRCUIT COURTS OF JUSTICIARY. 101
' Hamilton ffuilty of sedition, in so far as, that he used ^ ^°-J- ^
° J JohnGraut
* language calculated to excite popular disaffection and and othprs.
* resistance to lawful authority; and, by a majority of High Comt.
* one, find the panel Henry Ranken also guilty of i848.
* sedition, in so far as, that he used language calculated Conspiracy
* to excite popular disaffection and resistance to lawful
* authority.'
Looking at the verdict, as it 50 stands recorded, and
expressly approved of by the Jury when it was read to
them, I was of opinion, at the time, that it was a good
and effectual verdict, to make these panels stand con-
victed of the crime of sedition libelled in the major
proposition of the indictment, to a certain extent and
effect. And after attending to all the circumstances and
considerations, on which difficulties and doubts have been
raised on this, I am still of opinion that it is a good ver-
dict, on which some sentence ought to pass, as moved for
by the Public Prosecutor.
The indictment in this case libels sedition simply in
the major proposition (clearly a good form, according to
the case of Sinclair and later cases), and then, in the mi-
nor proposition, it states the facts on which these panels
were accused of having committed that crime ; and it
libels particularly, that each of the prisoners did, in the
meetings set forth, ' openly and seditiously' deliver cer-
tain speeches, some of the material words of which are
quoted in the indictment, and the whole terms or sub-
stance of which were more fully proved in evidence.
And it certainly bears, that the conduct and speeches of
the panels ' were seditious, and were intended and calcii-
' lated to excite popular disaffection, commotion, and
' violence, and resistance to lawful authority.'
The Jury have not found the prisoners simply guilty
of sedition as libelled ; and they have not found them
guilty of sedition under all the qualities expressed in
that clause of the minor proposition. But they have
found them guilty of sedition : in so far as that (with re-
ference to the particular facts laid in the indictment as
102 CASES BEFORE THE HIGH COUKT
JohnGrant *^ ^*^^' ^"*^ *^® avermeiit that what he did, he did openly
and Others, fl^fi? sedUiously) he used language ' calculated to ejecite
^if''^ 2?*' ' pop^^'^''' disaffection and resistance to lawful authority.'
1848. In this finding, they have left out the word ' intended,'
Conspiracy and left the matter to stand simply on this, that the
' language used openly and seditiously was * calculated to
" excite popular disaffection and o'egistance to lawful authc"
' rity.' The matter, therefore, stands thus ; that the Jury
have not found, and I take it, have left out e^v proposito
that word ' intended,' not being pi'epared, as I under-
stand their explanation, to find that the langua,ge was
not only calculated to produce the effect libelled, but that
it was actually intended to operate in that manner. I -do
not understand the verdict as having negatived the exist-
ence of such intention. But such intention not being
found, we can only take the verdict on that which is found.
If the jury had supposed or meant that they were finding
the prisoners not guilty, they would no doubt have said
so, as they did in the case of Grant.
Now the question appears to me to be, Whether, when
the verdict finds the parties guilty of sedition, defining
the nature and extent of that sedition, in the terms
employed, the facts set forth in those terms do or do not
by law amount to sedition ?
But if the law be, as I think it is, that, under a charge
of sedition, if the acts or speeches libelled, are in their
own nature seditious, and calculated to excite disaffection
and resistance to lawful authority, that is sedition ; and
that it is not necessary or essential to libel or to prove an
actual intention in the speakers, writers, or actors ; then
as the word intended in the indictment was not necessary
to the charge, the verdict finding the parties guilty of
sedition, in terms sufficient to satisfy the principle of law,
must be effectual as a conviction of the accused, and suf-
ficient to warrant a sentence by the Court.
I do not think it is necessary now to go through the
various ca,ses which have occurred, in the practice of the
Court on indictments for sedition, though I have made
ANt) CIRCUIT COURTS OF JUSTICIARY. 103
notes, I believe, of nearly all of them. That has been No. e.
Ill . .1 » ,, John Grant
already done, in my judgment, very fully and effectually, and other?.
The indictments do in general bear, as all indictments High court.
Nov. 25.
do, that the things charged were done wickedly and fe- 1848.
loniouslt/, or, in the particular case of sedition, sometimes Conspiracy
openly and seditiously, vrhich has been found relevant in
the present case, as well as in other cases ; and in a few
instances the word intended, or some similar word, has
been applied to the character of the speeches or writings
libelled. But in thei general course of such indictments,
the terms most commonly used, are ' calculated,' or
' tending,' or some such word, applied to the words or
writings specified. Sometimes the words are ' of a se-
' ditious tendency' or ' ohviously calculated to stir up a
' spirit of disaffection,' &c. Sometimes writing and print-
ing a seditious pamphlet ' calculated to degrade and to
* bring into contempt our present happy system of go-
' vernment,' &c. ; sometimes (as in M'Laren and Baird)
' wickedly and feloniously deliver a speech containing a
' number of seditious and inflammatory remarks and asser-
' tions CALCULATED to degraded 'and bring into contempt
' the government and legislature, and to withdraw there-
' from the confidence and affection of the people, and fill
' the realm with trouble and dissension.'
I gather from all the cases, that the essence of the
crime of sedition consists in the cJiaracter and plain mean-
ing and import of the words spoken or written, as being
calculated or as tending to excite disaffection, to bring
the laws and constitution into contempt, or to excite to
resistance to lawful authority. And when this is clear in
any particular case, provided the words had been deliberate-
ly and by the free will of the party spoken or written, the
crime of sedition has been committed. No doubt, there
must be intention to this effect, that the party did intend
to spedk or to write i\\e things laid to his charge, bearing
the character of being so calculated to excite disaffection.
And if the words do not in their natural and obvious
meaning import that which is alleged, it may sometimes
104 CASES BEFORE THE HIGH COURT
No. 6. be necessary to assign and to prove an entirely different
and Others, meaning as attached to the words, — as in the case of
High Court. Daniel Isaac Eaton, in which it was alleged that King
1848. George the third was represented under the figure of a
Conspiracy game cock. But whcre the meaning and import of the
" words is not at all in dispute, the only question is, after
it has been proved that they werp used advisedly by the
parties, whether they are of the seditious import libelled,
in so far as they are calculated or have a tendency to ex-
cite disaffection and resistance to lawful authority.
Without thinking it necessary to go into further
detail, after the full explaijation already given, I would
only say, that my attention has been most particularly
fixed on the whole proceedings which took place in the
remarkable case of Robertson and Berry, who were tried
in March 1 793, on an indictment charging them with
the crime of sedition, in so far as they were guilty of
printing and publishing a seditious pamphlet, ' containing
' false, wicked, and seditious assertions, calculated to de-
' grade and bring into contempt our present happy system
' of government, and withdraw therefrom the confidence
' and affection of our subjects.' They were charged with
wickedly and seditiously printing and publishing the
pamphlet so designated. Upon that charge, a verdict
was returned, by which the jury, ' all in one voice find it
' proven that the said James Robertson did print and
' publish, and that the said Walter Berry did publish only
' the pamphlet libelled on.' That was a special verdict,
as the verdict in the present case is. It did not find
either of the prisoners guilty of sedition as libelled, or of
the crime libelled, but it found, in specific terms, a certain
thing as to each of the prisoners, without one word as to
the intention of either of them, and not saying specially
that they did those things wickedly and feloniously, or
with any such quality. This is the more important, be-
cause it gave rise to a great deal of discussion, in which
the accused had the aid of the very eminent counsel, Mr
Wight, and Dean of Faculty the Honourable Henry
AND CIRCUIT COURTS OF JUSTICIARY. 105
Erskine ; and after long argument, and after taking time No. e.
to consider, the Court were unanimous, that the verdict and others.
was effectual as to Robertson ; but they were divided in High Court.
Nov. 25.
opinion on the case of Berry. Yet it was decided by a 1 848.
majority {Eskgrove, Abercrombi/, Justice-Clerk Brawfield Conspiracy
against Henderland and Dunsinnan) that it was a good
verdict as to Berry also. The objection was precisely
that the verdict did not find the intention. But it was
decidedly held that that was not necessary.
And, indeed, if it were necessary that that should be
specially found by the jury, wherever they do not find a
simple verdict of guilty as libelled, it would be difficult
to see how any man should be found guilty, upon the act
of printing or publishing the most seditious and inflam-
matory libel which can be supposed. And yet I take it
it to be clear law, that every man is answerable to the
law for what he prints and publishes to the world of a
seditious tetidency. He may sometimes prove a case, to
relieve himself wholly or partially. But in the absence
of all such proof, the case is clear on the act done.
I do also think it very striking, that in that very able
address which Mr John Clerk, whose zeal for the interest
of his clients, as well as for the liberty of the subject, and
whose great knowledge of law, and extraordinary acute-
ness of discrimination, never were exceeded in any bar,
made for Mr Fysche Palmer, he nowhere maintained (and
neither did even Mr John Haggart, in objecting to the re-
velancy of the indictment) that the jury must be satisfied .
of the actual intention of Mr Palmer in the matter. But,
on the contrary, Mr Clerk says, in emphatic terms, ' To
' render a writing seditious, it must be intended or calcu-
' lated to urge the people to actual violence ;' and the
charge of Lord Abercromby in that case was entirely on
the question, whether the paper was of a seditious import
or tendency, and whether Palmer was the writer or art
and part in writing, printing, and publishing it.
In connection with that case, and as very important in
the question, I beg leave further to observe, that in all
106 CASES BEKOllE THE HIGH COURT
John Grant *^® indictmeiits to which I have been alluding, there is
and Others, ■yyhat used to be Called the 'at least' clause, on which
H^g^Court. the accused might be found guilty as art and part, though
1848.' not proved to be the direct author or actor in the writing,
Conspiracy printing, or publishing. And so the verdict in the case
& Sedition. ^. _ , ^ ° . i . i i-i i i
of Palmer finds ' the address mentioned m the libel to be
' a seditious writing, tending to mflame the minds of the
' people : Find that the panel was art and part guilty in
' writing the said address, and that he is guilty of causing
' the said address to be printed, and that he is guilty of
' distributing, and causing to be distributed, the said sedi-
' tious and'inflammatory writing.^ This is another example
of a special verdict, bearing not a word o/'intjention and an
important part of it depending on the at least clause, in
which no intention is set forth, except what might be im-
plied in the nature of the writing itself.
I shall not go farther into this matter, excepting only
to observe, with all manner of diffidence, that, as far as I
am informed, it would be quite clear in England that, if
the libel set forth in the indictment ov information is in its
nature seditious, it is not material whether an actual in-
tention be found or not. Thus, Lord EUenborough said,
in the case of the King against Oobbet, ' that if a publi-
' cation be calculated to alienate the affections of the
' people, by bringing the government into disesteem, whe-
' ther the expedient resorted to be ridicule or obloquy,
' the writer, publisher, Sec, are punishable; and whether
. ' the defendant really intended by his publication to alienate
' the affections of the people from the government or not, is
' NOT MATERIAL. If the publication be calculated to have
' that effect, it is a seditious libel.' And see Ilea:^ v. Bur-
detf, &c.
I am therefore of opinion, that, in this case, the verdict
is sufficient, to infer a sentence as for sedition. But, as
I have said before, it is a verdict finding the prisoners
guilty of a charge of sedition considerably mitigated.
Lord Medwyn. — The indictment in this case contains
a distinct charge of sedition, and the Jury have found.
AND CIRCUIT COURTS OF JUSTICIARY. 107
by their verdict, that the two pannels are guilty of • se- No. 6.
T • • n 1 11, 11 -John Grant
' dition, m so tar as, that they used language calculated and others.
' to excite popular disaffection, and resistance to lawful High Court.
. . Nov. 25.
' authority.' This was in answer to the facts constitu- iius.
tive of the charge, that they openly and seditiously used conspiracy
the language there set forth. This is a distinct finding of
the offence charged ; and in the explanation which oc-
curred with the Jury when they returned their verdict,
they pointedly told us that it was their meaning to find
them guilty of sedition, in so far as they did what is there
expressed. Now, is there anything which neutralizes
or nullifies this distinct finding ? nothing certainly in the
verdict, for it contains nothing more than the words al-
ready quoted ; but it is said that the charge which the
Jury had to try was, whether language was used, ' in-
' tended and calculated to excite disaffection,' and that
the Jury have not found anything with regard to the
intention of the speakers, and as the Jury explained to
the Court, this was not an oversight, but omitted ea^
proposito •■ then, it is argued, that the intention to ex-
cite disaffection not being found, but the reverse inferred,
that this verdict does not support the charge and the
crime of sedition, although the Jury may have thought
that what they found was sufficient to do so. No doubt
there is some difficulty here, and a good deal of plausi-
bility in the objection, but after some wavering in my
opinion, I have now come back to my original impres-
sion, that the objection cannot be sustained. The doubt
in my mind arose from the description of the crime of
sedition given by Baron Hume, ' that it reaches all prac-
' tices which are suited and intended to disturb the tran-
' quillity of the State,' and the sanction which seemed to
be given to this statement by the present indictment, as if
it was a necessary element in the charge that the words
openly and seditiously spoken were intended as well as
calculated to excite disaffection, so as to call upon the
Jury expressly to find the intent as well as the fact of ut-
tering seditious expressions. But I am now satisfied that
108 CASES BEFORE THE HIGH COURT
No. 6. the crime of sedition requires neither the intent to be set
John Grant „,.,,,. , /. iij.it
and Others, forth in the indictment, nor to be found by the Jury.
High Court. It is not one of those offences where we look to the in-
■^Tis.^" tent so much as to the consequences, or the effects pro-
CoDspiracy duced, or calculated to be produced, by the words ut-
& Sedition. jgj.gj^ ^^^ meaning of which is plain. It is the danger
to the tranquillity of the State from seditious harangues
addressed to a multitude of people, rather than to the
intention of the speaker, that the law looks to. Some
crimes consist in intent, and then this must be specially
set forth in the charge, and must be found by the Jury.
That branch of the law of treason which consists in com-
passing and imagining the death of the king, rests on
the intent, and the overt acts are only to prove this in-
tent. The intent must be charged and must be found.
In a more ordinary department of law, there may be a
charge to stab any one, with intent to murder, rob, or
maim, or disfigure ; there the essence of the crime is the
intent. But sedition is not a crime of this character :
its essence is using seditious language, calculated to ex-
cite disaffection in the minds of the hearers. Accord-
ingly, indictments have been well laid, and held relevant,
without any thing about intention being stated in them.
Indeed, I do not know that an indictment for sedition
was ever objected to, because nothing was said as to the
intention of the speaker, but only the tendency of his
language stated. Thus, in the case of Morton Sf Others,
in 1793, the charge was, that they were guilty of sedi-
tion, by uttering seditious speeches, tending to excite a
spirit of disloyalty and disaffection to the king and esta-
blished government. I think, in all the many cases for
sedition tried at that time, the same phraseology was
adopted. In the case oi Be'try and Robertson, the state-
ment was, it was calculated to degrade and bring into
contempt the Government : in Fysche Palmer, the same
term is used, and in Skirving's, and in others. We must
never forget that these prosecutions were conducted by
the able Crown counsel of the day, including Solicitor-
AND CIRCUIT COURTS OF JUSTICIARY, 109
General Blair and Mr Burnett, and the pannels were j^hn Grant
often defended by the greatest lawyers at the Bar, in- and others.
eluding Mr Wight, Mr Clerk, and Mr Gillies among High Court,
others. Again, at a later period, in the case of M'Laren i848.
and Baird, in 1817, sedition was charged, in so far as Conspiracy
1 111, 1 7- 1 • 1 & Sedition.
the pannels had spoken words tending to bring the go-
vernment and legislature into contempt. The eminent
counsel who defended the accused, distinctly admitted
that this was a relevant charge of sedition ; that it was
not necessary specifically to set forth intention in the
charge, and on this they were convicted and punished.
One cannot, however, wonder that an express assertion
of intention in a charge of using seditious language,
especially to an unlawful assembly, should be introduced
into an indictment as an important aggravation of the
charge, as was done in some portions of the indictment in
Muir's case ; for, when any one at a large public meeting
of the lower classes, addresses them in inflammatory lan-
guage, as men unjustly oppressed by their rulers, and incit-
ing them to redress their wrongs, and to provide guns and
bayonets, for the purpose of resistance, it must be pre-
sumed that the speaker intends that his views should be
adopted, and his advice followed : it is the only suppo-
sable motive for his having addressed such language to
such an audience. The intention is, in short, implied
in the mere use of the words, and proved by it. If
the accused can shew that he had no such motive,
but a different one, and that an innocent one, not
plainly calculated to create dissatisfaction, this may
possibly be a defence for him, and save him from
what the law implies in his having seditiously uttered
words calculated to excite disaffection. But it will not
do merely to allege and prove another motive than the
intention to excite dissaffection — it must be some inno-
cent motive, and not calculated to have any other than
the intended effect, if such can be found ; such only would
justify his conduct. For instance, suppose this case, — a
very improbable one, no doubt, — that a speaker, vain of
110 CASES BEFORE THE HIGH COURT
John Gran ^^® oratory, conceited enough to think he could regulate
and others, and rcstraiu the feelings and conduct of a mob, should,
High Court, with no other motive but a display of his oratorical
1848.' powers, and speaking even against his own feelings and
Conspiracy convlctious, addrcss a public meeting, and use sedi-
tious language to them, surely this would be sedition for
which the speaker would be responsible, as calculated to
excite disaffection, although he had not the most remote
intention that this should be the effect of his oratory.
Again, suppose a hired orator were procured for the pur-
pose : would his having no other intention in what he did,
except to pocket the sum for which he had undertaken
the task, be any defence to him ? If any one uses in-
flammatory language to an excitable crowd of people,
though without the most remote intention to excite
them, he must be responsible for seditioui just as much
as a man will be answerable to the law, if he fires a pis-
tol in a street and some one is injured by the shot, al-
though he had not the slightest intention of injuring any
one, and did not even observe any one in the way. The
act was calculated to do mischief, and it has done mis-
chief. He ought to have been aware of such a possi-
bility, and is held to be guilty, because he did not attend
to this. So also, the seditious speaker cannot be al-
lowed to use inflammatory language to a mob, and say
he had no intentioh to excite them. I think it clear,
then, that the charge would have been good without
stating that the seditious words were intended, and that it
is sufficient if calculated, to produce the efiect stated. A
jiu-y need not find all the facts and circumstances stated
in the minor, provided they find what are sufficient to
support the charge in the major, and I think this is
amply done here. The terms of the verdict shew that
it was a well considered one ; while they do not find any
thing as to intention, observe they do not even find that
the words used were calculated to excite ' commotion
' and violence,' which is also in the charge, plainly
meaning to characterize the sedition which they do find
AND CIRCUIT COURTS OF JUSTICIARY. Ill
proxted, as of a less dangerous kind than if they had No. 6.
„,,,,,, . ^ . T, , , n 1 John Grant
found the whole allegation ; in like manner they only nnd and others,
it calculated to excite popular disaifection and resistance High Court.
to lawful authority, and I think that they declined to find \sis.
any thing as to intention with the same view : they held conspiracy
this to be an aggravation of the offence of which they ^ ^^'^'''o"-
found the paimels guilty, as the other would have been
also, and omitted it with the same view of lowering the
character of the sedition, for which they held the pannels
must be answerable. The omission of any finding as to
intention, does not then nullify, but only characterises,
the sedition, which is expressly and substantively found.
Lord Cockburn. — I have no idea of a crime without
guilt in the mind of the criminal. No crime can be
committed by any mere act, abstracted from all consi-
deration of motive. Actus non facit reum nisi mens sit
rea. In the great majority of cases, the mental crimi-
nality consists in the intention to do the particular thing
charged ; and hence the wickedness of that intention is
commonly, though perhaps loosely, given as descriptive
of the only sort of guilt, that exists. But it is not to the
precise case of a deliberate intention to commit the exact
crime, that the principle can even be meant to be ap-
plied. One crime may obviously be committed while
another was meant ; there may be criminality in a good
motive, such as in the love of applause or of gain ; and
there may be a culpable indifference to consequences,
which implies wickedness, and is itself a crime. What
the principle means, is, that there must be mains animus.
But there are so few cases in which this animus means
anything except guilty intention, that this last expression
is usually given as denoting the general meaning. The
inward guilt, whatever it may be, may be inferred from
the tendency of the act, but it is never in the mere ten-
dency, apart from malus. animus, that the guilt consists.
There is no case to which this principle applies so
strongly as to sedition. And this for a plain reason. In
a country like this, where everything public is managed
112 CASES BEFORE THE HIGH COURT
No. 6. by free discussion, and the free action of parties, opinions
and others, and projects are propounded daily by one set of people
High Court, as uecessary for the immediate maintenance of autho-
"i848.^' rity, which are denounced by other sets as involving its
Conspiracy immediate prostration. Upon vital questions there are
& Sedition. £g^ honest politicians, or conscientious sectarians, who
do not think their opponents views dangerous. It is the
fact of their being supposed to be dangerous that makes
the schism. If, in such a state of things, the mere con-
viction by one party that what his adversary wished, led
to disorder and trouble, justified a conviction of sedition,
it would just depend on who the jury were, whether an
accused person was guilty or innocent. How many pub-
lic measures and principles have been advocated within
these twenty years, as to which one faction has honestly
thought, not merely that the general expediency, but
that the direct and instant tendency to disaffection and
insubordination, lay one way, and another faction that
it lay in the opposite way. If it depends merely on the
tendency of the schemes, principles, or language, most
ardent party men are necessarily seditious in the sight
of their opponents. But the law interposes between all
parties, and saves every man against whom neither cri-
minality of design, nor a blameful disregard of results,
can be proved. This principle gives no protection to the
wilful, though conscientious despiser of the law ; because
his case includes the general intention to violate the law,
which implies wickedness of design.
Accordingly, I know nothing that is more unequiro-
cally laid down by all authorities, or more deeply im-
plied in all sedition trials, than that the guilt of sedition
is not contracted, where the intention, — in the sense in
which I use this expression, — was innocent. This, as I
read them, is the doctrine of all institutional writers, of
all courts, and of all public prosecutors since the Revo-
lution. It is so necessary for the practical exercise of
the constitutional privilege of free discussion, that it is
one of the principles of which the law is proud.
AND CIRCUIT COURTS OP JUSTICIARY. 113
T have been surprised to be told, that this principle is No. e
I'll p T-i 1 1 T 1 ^• T . John Grant
not recognised in the law oi Jiingland. I believe that it and others,
is. And I believe this with as much confidence as it is High Court.
ever proper to feel in regard to anything in another isis. '
legal system, and that is contested. There is no subject Conspiraty
on which English light could be more relevantly bor- ^ ^®'*'*'°"-
rowed ; and therefore, since we differ about the law of
that country, I wish that we had protected ourselves
by taking the usual course for having it ascertained.
The only conclusion that I can form without this aid, is,
there can be no sedition there without some direct or
indirect guiltiness of intention. Hence, every English
indictment for this offence sets forth (as I understand)
that the words were spoken wickedly and maliciously ;
or charges the specific fact that the mischief expressed
by them was intended. Or, they are sometimes said to
have been used seditiously, — which includes everything
necessary for the composition of the offence, and among
other things wickedness of design. The term suggested
by the Criminal Law Commissioners, — who, I respect as
most sagacious and enlightened expounders both of what
the law is, and of what it ought to be,-^ — is malicious.
But the precise term is immaterial. In one way or
other a charge of criminal design, or of criminal indiffer-
ence, is expressed in all charges for sedition ; and I sus-
pect that no example can be exhibited of judgment fol-
lowing on any verdict which excluded this quality.
I am perfectly aware of the cases and passages in
which it is said that the use of words of a dangerous
tendency is sufficient ; but, I think that these authorities
are misunderstood. All that I understand them to
mean is, that atrocity of language is, of itself, competent
evidence of the intention, or of the wickedness of its
user ; and that, if not rebutted^ it is conclusive evidence.
This I agree with. But, instead of implying that the
intention is immaterial, it implies exactly the reverse.
It implies that it is material, but that it may be estab-
H
& Sedition.
114 CASES BEFORE THE HIGH COURT
No. 6. lished by a particular sort of proof. All the length that
fndotos. Chief- Justice Best goes, in the case of Burdett, is,_that
HighCourt. ' It is enough if it (the criminal intention) be highly
^1848*" ' probable ; particularly if the opposite party has it in
conspiracy ' his power to rcbut it by evidence, yet offers none ; for
then we have something like an admission that the
' presumption is just.' Mr Justice Bayley says, in Har-
vey's case, ' I take the law to be, that where a particu-
' lar consequence necessarily results from any act, the
' , party doing that act is to be held, prima facie, as in-
' tending the necessary consequences of that act.' No
doubt. But still (in the first place) this only means
that the act, if unexplained, is good evidence of the in-
tention ; and (in the second place), this is a presumption
to be judged of hy the jury. If the intention had not
been deemed a part of the offence, what occasion had
these learned persons to speak of it ? They had simply
to say that the dangerousness of the language being as-
certained, the enquiry was over. I should like to see
what an English court ever did with a case where the
jury, after condemning the words, instead of drawing
the inference of guilty intention, acquitted the prisoner
of this part of the charge.
However, I do not believe that any of us are safe in
groping oiu- own way, by our own threads, through the
intricacies of any foreign system. We are more in the
open air with oiu* own law. As to which, had it not
been for the state ol the court on the present occasion,
I should not have had the very shadow of a doubt.
In considering the punishment that ought to be in-
flicted on Joseph Gerald, in 1794, two Judges take occa-
sion to dispose of the alleged purity of his intentions.
One of their Lordships says, that perfect innocence of in-
tention is not a ground even for mitigation of punishment ;
and the others goes the length of holding this circum-
stance as a positive aggravation. These are the only two
passages in the legal proceedings of Scotland that I am
waare of, where intention has been struck out as an
AND CIRCUIT COURTS OF JUSTICIARY. 115
element of sedition. I do not suppose that they will be No. 6.
. , . - . ^^ "^ John Grant
copied m modern times. and others.
Baron Hume was engaged, I believe, in the composi- High Court-
tion of his work while these old proceedings were going on. "sis. '
But instead of seeing anything of this kind in them, the conspiracy
principle which he extracts from them is, that it requires * ^^^'*"'°'
a combination of intention with tendency to constitute
the offence. ' The offence reaches all the practices, &c.
' which are suited and intended to disturb the tranquillity
' of the state.' These are the deliberate words of a
cautious writer, giving to posterity the lesson furnished
by recent proceedings, and I see no abandonment, or
abatement, of the doctrine in any other part of his Com-
mentaries.
Burnet was professionally engaged for the prosecution
in almost all these cases, and all his feelings were on
that side. Yet, when he comes to describe them as an
institutional instructor, he too holds them to import
evil intention as indispensable. After giving examples
of seditious words, he adds, that they are seditious, ' If
' such invectives are uttered and published in such a
' form as is calculated to excite the people to violence
' and tumult, and proceed obviously from that intent.''
In the case of Baird and Maclaren, bad intention was
not charged by the use of this expression ; nevertheless,
the words were said to have been employed wickedly,
and the Lord Justice-Clerh (Boyle) instructed the Jury
that ' criminal intent is of the very essence of the crime.'
I do not rely merely on these detached expressions, but
on the whole scope, and object, and spirit of the charge.
It relates to little else than to the sufficiency or insuf-
ficiency of the evidence of the moral criminality of the
accused.
I cannot abandon authorities so express, and that co-
incide so correctly with the general principle. But I
rest less even on these authorities than on the undeyiating
authority of our libels. I have not observed a single one
where wickedness of mind in the accused has not been
116 CASES BEFORE THE HIGH COURT
No. 6. charged. No matter how it is meant to be proved, it has
and Others, always heeo-charged. No doubt the charges have not always
High Court, been made in oneway ; nor is this necessary. It has some-
1848. ' times been made by setting forth that the language ' was
Conspiracy. Calculated and ' intended' to effect a certain species of mis-
& Sedition gjjjg£ ^j. Q|.jjgj. ^jj^gg j^ jjg^g ijegjj jjiade by saying it was
done, wickedly and feloniously.' But, whatever the form
has been, my statement after all I have heard to-day, is,
that not one sustained indictment has been, or can he, refer-
red to, where nothing was charged beyond the bare fact that
dangerous words were published. It seems to be thought
that the imputation of its being wickedly and feloniously
meant is immaterial ; and this merely because it is com-
mon. These are called words of style. And so they are ;
just because they are so necessary that they are never
omitted. I cannot hold words in a criminal charge to
have no meaning.
Accordingly, what is it that the greater part of all trials
for sedition are about ? According to the prosecutor's
view, most of them ought to be at an end as soon as the
import of the words is settled. But the struggle of
almost all such trials is, to establish, or to refiite, the
imputation of the prisoner's guilty mind, as a thing not
necessarily involved in the mere tendency of his act. If
what I have heard in this discussion be sound, nearly the
whole evidence, the whole labour, and the whole elo-
quence of such proceedings might have been saved, and
indeed of this very case.
But really the whole of this discussion is superseded
by the special terms of the particular libel before us.
Whatever it might have done withouit, it does contain
not only the general cliarge of wickedness, but a specifi-
cation of what the wickedness consisted in, viz. an inten-
tion to produce disaffection and disorder. This is the
case that these prisoners were warned to meet. This,
alone, is the accusation that was found relevant. The
use of these words shows what the prosecutor understood
to be necessary. And certainly the intentioa thus in-
AND CIRCUIT COURTS OF JUSTICIARY. 117
troduced, as descriptive of what the general imputation No^^.
of wickedness meant, into the libel, was not left out of and others,
the trial. I was not present ; but the communication HighComt.
between the Court and the Jury implies that the inten- i848. "
tion had been discussed, and was meant to be dealt with Conspiracy
by the assize as a matter of relevancy and importance.
Yet the substance of the prosecutor's argument now is,
that this was entirely immaterial, and need not have
been in the case at all.
If it be true that wickedness, particularly of intention,
is no necessary part of the legal crime, then it must be
true that an indictment, or a verdict, may be good, though
this part of the charge or of the conviction be left out.
Anything may be omitted that is useless. And, if it may
be omitted at all, it may be omitted purposely and openly.
Now, suppose an indictment to set forth, or a verdict to
find, or a prisoner to plead, that the publication was cal-
culated to provoke disaffection, but that he did not mean
this, and that this being the only criminal object charged,
he had no criminal feeling whatever. I do not believe
that such an indictment, or verdict, or plea, would be
thought sufficient.
Assuming, therefore, that guiltiness, and in this case
guiltinesss of intention, is essential to the offence, and
that, though proveable by the mere force of the words,
it is the Jury that must find it proved, the question is,
whether they have done so here. This brings us to the
construction of the verdict.
No verdict ought ever to be strained in order to give
it a meaning which it does not plainly express ; least of
all should it ever be strained against a prisoner. On
the contrary, every possible benefit ought to be given to
a prisoner that the words admit of. In particular,
wherever a circumstance, essential for his conviction, is
not found, he is entitled to have the verdict considered
as a verdict of acquital.
The verdict before us does not find the prisoners
simply guilty ; nor guilty as libelled ; nor guilty simply of
118 CASES BEFORE THE HIGH COURT
No. 6. sedition. Any of these would have done, because under
and others, these general terms would have been included whatever
High Court, was in the charges. The words 'guilty of sedition^ no
18*48. ' doubt, are in the verdict ; and a great portion of the
Conspiracy rcasoning I have heard seems to me to imply that no
& Sedition, ot^gj. ^yords are to be cared for. But I cannot stop there.
Because the finding of guilty of sedition is connected
with an explanation, or rather with a limitation ; and I
must take this into view also.
The prisoners were not charged with the abstract use
of improper language. They were charged with using
this language wickedly ; and the species of wickedness
was described as consisting of an intention to produce
the mischief for which the words were calculated. Now,
the jury find them guilty of the abstract fact but not of
the guilty quality. They find each guilty of sedition,
' In so far as that he used language calculated to ex-
' cite popular dissaffection and resistance to lawful au-
' thority.' A lunatic might have done this. As I read
this, it means, when legally construed, that they are ac-
quitted of everything else, particularly of all malus ani-
mus. They are guilty in so far. In so far as what ?
As that they used words of a specified tendency. This is
not a virtual, but a positive exclusion of everything
charged, but not found ; and among other things, it is
an exclusion not only of the wicked intention with which
the words were connected in the accusation ; but of all
the other guilt, if there be any, in the indictment. It
does not appear to me that the verdict would have been
at all more favourable for the prisoners if it had, in ex-
press terms, found the prisoners not guilty of those parts
of the libel which imputed wickedness or intended mis-
chief to them. It is in vain to refer to the words as
proving the guilt, because admitting, as I do, both the
competency and the sufficiency of this proof, it was the
province of the juj-y alone to apply it, and this they have
not done. We have no right to speculate about their
probable meaning. I think I can ascribe the first part
AND CIRCUIT COURTS OF JUSTICIARY. IIQ
of tlieir verdict to a rational ground enough, consistent- jo^°|j^t
ly with an , intention in the second part to acquit the and others.
prisoners. But if they really meant to convict, I have High Court,
great difficulty in conceiving how they could limit the i848.
conviction to the bare use of the words. Looking there- Conspiracy
fore at the terms of the verdict, I hold it to contain a
finding of guilty of sedition, — with a limitation which, in
l&w, makes no sedition. It seems to come very near the
celebrated English case, where the jury were satisfied
that the words had been published (no matter whether
by speaking or by printing), but were not satisfied about
anything else, and therefore found the prisoner guilty
' oipvblishing only? No sentence followed on this ver-
dict. The correct translation of the present verdict is,
' Find the prisoners guilty of whatever sedition there is
' in the mere use of dangerous language, but acquit them
' of personal blame.' In short, we condemn the language,
but not the men ; at least, whatever we may think of
their intemperance, we do not think them seditious, un-
less the mere uttering of the words constitutes sedition. The
bare utterance might, as evidence, have warranted the
Jury in inferring malm animus ; but they not having in-
ferred this, but having restricted their finding to the
abstract fact of the use of the words, the Court has no
right to make the inference for them.
But we are not now entitled to confine our attention
merely to the terms of the verdict. Whether the com-
munication that took place between, the Jury and the
Court ought io have been introduced as connected with
the verdict, I do not say. But it was introduced ; au-
thoritatively, on the motion of the prisoner, and without
objection by the Prosecutor. Its import was that, on
its being put to them, the Jury stated that they unani-
mously meant to leave "the word intended out of their
verdict. I hold the meaning of this to be, that they
meant to acquit ; or not to convict, of wickedness of
intention.
Now, what is the substance of the prosecutor's claim ?
120 CASES BEFORE THE HIGH COURT
t ^°n^' . It is, that wickedness of intention is to be inferred from
John Grant •
and Others, the use of the language ; and that, therefore, though the
High Court. Jury has not only not drawn, but has unanimously dis-
1848. ' claimed the inference, still this very inference is to be ex-
Conspiracy tractcd, by ingcnious interpretation, out of the very words
" ' '""■ by which the disclamation was followed. I do not presume
to dictate, or to suggest, to any one else ; but, for my-
self, I must say that I recoil from this construction. I
could not go into it without a consciousness that I was
absolutely reversing what it was judicially explained
that the Jury intended. It is this feeling that makes the
whole discussion to me so painful. I think that we are
not giving effect to that of which the Jury unquestion-
ably meant to acquit ; and that we abstain from doing
so, by an interpretation, which is at the least not neces-
sary, of the very words which the Court took from the
Jury as consistent with that acquittal.
It may possibly result in there having been a miscar-
riage at the trial. But this is a misfortune of which
the prisoners are entitled to the benefit.
LoBD Wood. — ^The opinion I had formed,* upon con-
sidering the argument which was submitted to us, and
the authorities cited, was-^that the verdict is good ; and
I am confirmed in it by those delivered by your Lord-
ships, who have taken the same view.
After the whole subject has been so fully exhausted,
it could serve no purposCj and indeed would only be a
useless consumption of time to go over it again in detail.
I shall therefore only say, that when I consider the charge
of sedition in the indictment, which is now alone in ques-
tion,-'— the manner in which it is there laid, all the acts
and conduct libelled being averred to have been done and
uttered seditiously, — and the law and practice relative to
the offence, and to the form and style of the libel, of
which there are numerous instances where no special in-
tention is set forth, — and when, "with reference to these
things, I read the verdict as it stands — but giving, at the
same time the utmost effect to which, as I think, the ex-
AND CIRCUIT COURTS OP JUSTICIARY. 121
planation accompanyinar it is entitled, and after which No- s.
explanation the verdict as it is worded was deliberately and others.
adhered to, — I am of opinion that it is a good and unob- High Court.
jectionable verdict of guilty of sedition ; that is, guilty of isis. '
the acts of sedition libelled, to the extent mentioned in Conspiracy
the verdict, although the verdict omits to find a part of
what is libelled, viz., the special intention libelled, which,
I apprehend, has only an intensive meaning, and is laid
merely as descriptive of one specific quality of the crime
charged, but not as an essential element in the crime,
which by law it does not require to be, and which spe-
cific intention, therefore, it was not necessary to establish
by proof, or consequently to have found by the verdict of
the jury, in order to render the verdict suflScient to war-
rant a sentence being competently and effectually passed
upon it.
Thereafter Lords Mackenzie, Cockburn, and Wood,
withdrew, leaving the Lords Justice-Clerk, Moncreiff,
and Medwyn, before whom the case had been tried, to
pronounce sentence.
Lord Moncreiff. — My Lords, I am happy to have it
to Siay, that, having sat on this Criminal Bench for nine-
teen years, I have not been called on to take any part in
a trial of sedition until this time. But the case has oc-
curred now ; and it is impossible, in the circumstances
under which this indictment was framed, not to see that
there was an absolute necessity laid on the authorities to
bring the matter under the consideration of the Court,
considering that the indictment contained very serious
charges against the prisoners. The charge of conspiracy,
in the terms libelled, is of a very serious character. It
has, however, fortunately for the prisoners at the bar, ac-
cording to the view of the case I take, turned out that
the charge of conspiracy has not been proved against
them ; and, that being the case, it is laid aside. But we
come to the charge of sedition ; and the Jury have found
the prisoners guilty of sedition in the particular terms
122 CASES BEFORE THE HIGH COURT
John Gr' ®^PJ"^ssed in their verdict. No doubt, unquestionably,
and Others, the finding them guilty of that charge of sedition, even
H^s'' Court, in the modified terms in which it appears, implies a cer-
1848. tain criminal intention, the intention of speaking these
Conspiracy words, which, in the opinion of the Court and the Jury,
& Sedition. .
are seditious ; and, without going into any of the particu-
lars, I must say, that it is impossible for any man to read,
these speeches, and particularly to read the whole of them
as given to the Jury, it is impossible, I say, for any man
of sober and calm mind, looking to the interests of the
country, not to see that they are seditious in the charac-
ter which the Jury have given them, namely, that they
were calculated to excite popular disaffection to the Go-
vernment, and to excite resistance to the lawful autho-
rities. If they had any meaning at all, they have that
meaning and import. I am not speaking of the inten-
tion of the parties, but certainly they have that character
and import, as has been found by the Jury. It would be
a sad matter indeed, if the delivery of such speeches, in
Ifirge assemblies of persons, one of these assemblies in a
room consisting of six, seven, or eight hundred persons,
and another in the open field of Bruntsfield Links, where
some thousands were present, were to be allowed, where
the language of these speeches was of dangerous tendency
to the best interests of the country. I will not allow
myself to enter into. the matter on which these speeches
are founded, nor to enter into the views of these prison-
ers, or of the Association to which they belonged ; but I
will only say, if these views were to be accomplished in
the manner the speakers seem to suggest, they were of
the most dangerous character for the best interests of this
country. But when I say this, I have to say, that it is
with great pain that I am called upon to propose sen-
tence in the case. I wish I could have been saved this
pain. Undoubtedly it is very painful to move a sentence
against such persons as the pannels at the Bar, who ap-
pear in other respects to have been respectable individu-
als. But we must discharge our duty to the country.
AND CIRCUIT COURTS OF JUSTICIARY. 123
The law must be put in force : and the Court cannot No. e.
John Grant
permit such things to go on without punishment ; and and otherB.
when the Jury have found the prisoners guilty of sedi- Highcourt.
tious speeches, it is the duty of the Court to pronounce ms. '
such a sentence as to shew to others that similar prac- conspiracy
tices cannot be permitted with impunity.
It is a great consolation for me to think, that now, as
the case stands before us, it is undoubtedly a very miti-
gated case of sedition. I give all weight to the judgment
of the Jury in disavowing the intentions of the parties,
namely, that their speeches were intended to produce
what is stated in the libel. I take all this into conside-
ration ; and I take into consideration the finding of the
Jury, that the serious charge of conspiracy is out of the
case. We are called upon, therefore, to consider what
sentence we ought to pronounce, with all possible leniency
to the prisoners ; and the sentence which I have to pro-
propose cannot be thought by any portion of the com-
munity to be a severe punishment in such a case ; and I
am willing to believe that it must appear to every person
of sober understanding, to be as lenient as the Court can
pronounce. The sentence which I propose is, imprison-
ment for each of the prisoners for a period of Four Ca-
lendar Months.
Lord Medwyn. — I concur in the proposition of my
Lord Moncreiif.
The Lord Justice-Clerk. — Henry Ranken and Ro-
bert Hamilton, if, after the period of reflection which you
have had, you entertain and cherish the sentiments and
opinions which have been proved in evidence to have
been delivered by you, it would be unnecessary for me to
say one word more in pronouncing the sentence of the
Court, than this, that the object of the punishment is to
deter you and others from committing a like offence in
time to come. I have to say, that in regard to you, in
particular, the repetition of a similar offence, after punish-
ment has been once inflicted by this Court, must operate
most prejudicially against you in the event of further
124
CASES BEFORE THE HIGH COURT
jota°Graiit conviction. But I would fain hope and trust, and I ex-
and Others, prggs it with sincerity, that, from your demeanour, — I
^jshCourt. iiave gathered it in one way or another, I cannot tell
J 8^8. how, — but I have gathered throughout the course of this
Conspiracy trial, fpom vour whole manner and demeanour, that it is
& Sedition. 'J
not likely that you will again rush wantonly and reck-
lessly into the use of such language as you did upon the
occasions libelled. From the situation which I hold, I
think it also my duty to say, that I do not think the
authorities of this place interfered one day too soon to
prevent and stop the meetings at which such language
had been openly and constantly used.
The sentence of the Court is, that you, Henry Ranken
and Robert Hamilton, be imprisoned for Four Calendar
Months.
Nov. 20.
1848.
Present,
The Lord Justicb-Clebk,
Lords Mackenzie and Medwyn.
Her Majesty's Advocate. — Craufurd A.D. — J. M. Bell A.D.
No. 7.
James
Pnrves.
High Conrt.
Nov. 20.
1848.
Bigamy.
James Pcrves — W. H. Thomson.
Bigamy — Relevancy — Proof. — Held, 1st, That in an indictment
for Bigamy, it is sufiScient in a question of relevancy to aver that
the pannel was lawfully married to the first wife, although the cir-
cumstances set forth in the libel shew that such marriage must have
been an irregular one. 2d, That the proper time to object to the
validity of such marriage, is on the proof, if it be shewn that in
truth the marriage is open to challenge.
James Purves was charged with Bigamy :
In so far as, you the said James Purves having, on the 18th day
of August 1845, or on one or other of the days of that month, or of
AND CIRCUIT COURTS OF JUSTICIARY. 125
July immediately preceding, or of September immediately following, No. 7.
and at or near Paxton Toll-bar, in the parish of Hatton, and county James
of Berwick, been lawfully married to Margaret Leith, daughter of.
and then and now or lately residing with, Elizabeth Laing or Leith, a Jf o'er*'
widow, now or lately residing in or near Narrow Lane of Berwick- 1848.
upon-Tweed, a form or ceremony of marriage having, then and there. Bigamy
been performed by Henry Collins, designing himself celebrator of
marriages in Scotland, and you and the said Margaret Leith having,
then and there, mutually accepted each other as spouses, in presence
of the said Henry Collins and witnesses, and you having lived and co-
habited with the said Margaret Leith as your lawful wife, you the said
James Pufves did, on the 14th September 1848, or on one or other of
the days of that month, or of August immediately preceding, or of
October immediately following, within or near the public-house or
tavern, situated at or near Lamberton Toll, in the parish of Morning-
ton, and county of Berwick, wickedly and feloniously enter into an
irregular matrimonial connection with Catherine Fyfe, daughter of,
and now or lately residing with, Ann Matthew or Fyfe, a widow, now
or lately residing in Haddington, a form or ceremony of marriage
having been, then and there, performed by Robert Luggate, designing
himself celebrator of border marriages, then and now or lately residing
in or near Berwick-upon-Tweed, and you and the said Catherine Fyfe
having, then and there, accepted of each other as spouses, in presence-
of the said Robert Luggate and witnesses, and you did afterwards co-,
habit with the said Catherine Fyfe as your wife : And further, you
the said James Purves did, on the 18th day of September 1848, or on
one or other of the days of that month, or of August immediately pre-
ceding, or of October immediately following, and within or near the
house iu or near Haddington, then and now or lately occupied by the
said Ann Matthew or Fyfe, enter into a matrimonial connection with
the said Catherine Fyfe, after proclamation of banns, the marriaga
ceremony having, then and there, been performed by the Reverend
"William Hogg, then and now or lately minister of the West Congre-
gation, Haddington, in connection with the United Presbyterian
Church, and residing in or near Haddington, and you did thereafter
live and cohabit with the said Catherine Fyfe as your wife ,• and this-
you did, you well knowing that the said Margaret Leith, your wife,
was still alive, and your said marriage with her still subsisting.
W. H. Thomson objected to the relevancy of the in-
dictment. The first marriage libelled, was plainly an
irregular one, celebrated at a toll-bar, by a person not
entitled to marry. The second was also an irregular
one. Hume, vol. i. p. 469, expressed great doubts of
the relevancy of a charge of Bigamy under such circum-
126 CASES BEFORE THE HIGH COURT
No. 7. stances, and his authority had been adopted in the case
Purves. oi Armstrong, High Court, July 15. 1844, Broun, vol. ii.
High Court, p. 257. Bell's Notes, p. 112. There was no authority
1848. ' to show that this indictment was relevant.
Bigamy. The LoRD Justice-Cleek. — The Court have not the
slightest difficulty in sustaining the relevancy of this
indictment. As observed, in the case of Brown, High
Court, Dec. 24. 1846, Arkley, p. 205, which was the
last case on the subject, the allegation in the indictment
that the pannel was lawfully married, is quite sufficient
in a question of relevancy. No doubt the Public Prose-
cutor must establish by evidence a lawful marriage, and
it will be open to the prisoner to redargue that evidence
if he can. But at present we are quite clear, that the
principle laid down in the case of Brown is the correct
one, and that this objection must be repelled.
A variety of evidence was led, conclusively establish-
ing both marriages, under circumstances of considerable
aggravation ; and the Jury having unanimously found
the prisoner guilty, —
LoED Mackenzie, in proposing sentence, said — That in
respect of the aggravated circumstances of the case, he
could not propose a less sentence than that of transpor-
tation. It was no doubt a very unusual one for the
offence of bigamy, but he thought it fully warranted in
the case before them.
The other Judges concurring, the said James Purves,
was accordingly sentenced to be transported for the
period of seven years.
AND CIRCUIT COURTS OF JUSTICIARY. 127
Present,
The Lord Justice-Clerk. Nov. 27.
1848.
Lords Moncreipp and Cockbhrn.
Her Majesty's Advocate — Sol.-Gen. Maitland — Craufurd A.D.
Alexander Matson — Larimer .
Relevancv. — Circumstances in which the Public Prosecutor was held
entitled to libel inconsistent modes of death in a charge of Murder.
Alexander Matson, was charsred with Murder : , n°- s-
° Alexander
Matson.
In so far as, on one or other of the days between the 26th and High Court
30th days of May 1848, both inclusive, the particular day being to Nov. 27.
the prosecutor unknown, or on one or other of the days of said mouth, 1__
or of April immediately preceding, or of June immediately following, Murder,
and within or near the house in or near Hillhousefield, North Leith,
in the county of Edinburgh, then and now or lately occupied by yon,
or at or near that part of the beach or shore, at or near Grinton
Quarry, situated to the west of the Pier of Granton, in the county
of Edinburgh, or at some place or places between your said house
and the said part of said beach or shore, at or near Granton
Quarry aforesaid, at some place in or near Leith, or in or near the
city of Edinburgh, the particular place being to the prosecutor un-
known, you the said Alexander Matson did, wickedly and feloniously,
attack and assault John Matson your son, or reputed son, a child aged
two years or thereby, and you did, with a hammer, or some other in-
strument to the prosecutor unknown, or with your fists, strike the
said John Matson, one or more violent blows on the head, or other
part or parts of his person, or you did kick him on the head with your
feet, or you did seize hold of the said child, and did dash his head
against a stone or the ground or some other hard substance, or you did,
at or near Granton Quarry aforesaid, throw the said John Matson, or
cause him to be thrown, into the sea, and did leave him therein, by all
which or part thereof, or by some other means to the prosecutor un-
known, the said John Matson was by you mortally injured, and im-
mediately or soon thereafter died ; and was thus murdered by you
the said Alexander Matson.
LoRiMEE, for the pannel, objected to the relevancy of
the indictment, in respect that an undue degree of lati-
tude had been taken in libelling the mode in which the
128 CASES BEFORE THE HIGH COURT
No. 8. crime was said to have been committed. Nothing could
Matson. be more diverse, or require more distinct lines of de-
High Court, fence, than the violence ascribed of striking with a ham-
1848. " mer, and the drowning, said to have been caused by
Murder, throwing into the sea. This was contrary to the autho-
ties, Hume, vol. ii. p. 190. It was not pretended that
the body was found in a state of decay, or that it was
otherwise so changed that the mode of death was not
discoverable, so as to bring the case within the exceptions
which were noticed in the note to Hume, vol. ii. p. 193.
The Solicitor-General, on the part of the Crown,
urged, that he had libelled with as much precision as
the circumstances would admit. The body having been
found in the sea, bearing marks of external violence,
which might have been sustained either before or after,
or at the time, of submersion, it was impossible for him
to be more precise ; and he was entitled, therefore, to
state the charge so broadly, in order that the evidence
might support the libel.
The Court held, on the grounds stated by the Solici-
tor-General, that the objection must be repelled, and
observed, that the degree of latitude to be allowed to
the Public Prosecutor, was always a question of circum-
stances to be determined by the Court in each case.
The pannel pleaded Not Guilty ; and after evidence
on both sides, the Jury returned a verdict of Not
Proven.
In respect of which verdict of assize, the said Alexan-
der Matson was assoilzied simpliciter, and dismissed from
the bar.
AND CIRCUIT COURTS OP JUSTICIARY. 129
Present,
The Lord Justice-Clerk,
Dec. i.
Lords Cockbukn and Wood. '^**'
Her Majesty's Advocate — Craufurd A.D. — Beat A.D.
AGAIKST
John Thomson — Broun — Mackonockie.
Evidence — Pboduction. — Circumstances in which the Court refused
to allow the Jury to inspect the head of the pannel, in support of a
plea of insanity, as to a mark said to have been occasioned by an
injury, it not having been previously shewn in evidence that this
mark was there before the pannel committed the act for which he
was tried.
John Thomson, auctioneer, Greenock, was charged, — joi,n"
Thomson.
That albeit, by an Act passed in the tenth year of the reign of "'S"™'*'
His late Majesty George the Fourth, chapter thirty-eight, intituled I848.
' An Act for the more effectual punishment of attempts to Murder in ~z rrTT
' certain cases in Scotland,' it is enacted by section second, ' That from Geo. IV.
' and after the passing of this Act, if any person shall, within Scotland, *'■ °°*
' wilfully, maliciously, and unlawfully, shoot at any of His Majesty's
' subjects, or shall, wilfully, maliciously, and unlawfully, present,
' point, or level, any kind of loaded fire-arms at any of His Majesty's
' subjects, and attempt, by drawing a trigger, or in any other manner,
' to discharge the same at or against his or their person or persons, or
' shall, wilfully, maliciously, and unlawfully, stab or cut any of His
' Majesty's subjects, with intent in so doing, or by means thereof, to
' murder or to maim, disfigure or disable, such His Majesty's subject or
' subjects, or with intent to do some other grievous bodily harm to such
' His Majesty's subject or subjects, or shall, wilfully, maliciously, and
' unlawfully, administer to, or cause to be administered to, or taken by,
' any of His Majesty's subjects, any deadly poison, or other noxious
' and destructive substance or thing, with intent thereby, or by means
' thereof, to murder or disable such His Majesty's subject or subjects,
' or with intent to do some other grievous bodily harm to such His
' Majesty's subject or subjects, or shall, wilfully, maliciously, and un-
' lawfully, attempt to suffocate, or to strangle, or to drown, any of
' His Majesty's subject or subjects, with the intent thereby, or by
' means thereof, to murder or disable such His Majesty's subject or
.38.
130 CASES BEFORE THE HIGH COUKT
No. 9. ' subjects, or with intent to do some other grievous bodily harm to such
JTohn ( jjig Majesty's subject or subjects, such persons so offending, and
1 ' being lawfully found guilty, actor, or art and part, of any one or
Dec'°4^ ' ™°''® °^ ^^^ several offences hereinbefore enumerated, shall be held
1848. ' guilty of a capital crime, and shall receive sentence of death accord-
Con. loth ' ingly/ And albeit, by the laws of this and of every other well-
Geo. IV. governed realm. Assault, especially when committed by shooting at
and wounding any of Her Majesty's subjects, and to the effusion of
blood, the serious injury of the person, and danger of life, is a crime
of an heinous nature, and severely punishable : Yet true it is and
OP verity, that you the said John Thomson are guilty of the statutory
crime of shooting above libelled, and of the crime of assault above
libelled, aggravated as aforesaid, or of one or other of them, actor, or
art and part: In so far as, on the 20th day of July 1848, or on one
or other of the days of that month, or of June immediately preceding,
or of August immediately following, on or neai Hamilton Street, in or
near Greenock, and at or near a part of the said street which is op-
posite or nearly opposite the shop situated in or near the said street,
then and now or lately occupied by William M'llwraith, then and now
«r lately a hosier there, and then and now or lately residing in or near
West Stewart Street, in or near Greenock, you the said John
Thomson did, wickedly and feloniously, attack and assault John
Kerr Gray, then and now or lately town-clerk of Greenock, and'
then and now or lately residing in or near Kilblain Street, in or-
near Greenock, and did present, aim, and discharge, at the said
John Kerr Gray, a pistol or other fire-arm loaded with powder-
and ball, or loaded with powder and some hard and lethal substance-
or substances, and did, wilfully, maliciously, and unlawfully, shoot at
the said John Kerr Gray with the said pistol or other fire-arm loaded
as aforesaid, and a ball or some other hard and lethal substance or
substances, being part of the said shot, did strike and wound the said
John Kerr Gray on or near his right breast or right side, or on some
-other part of his person, whereby he was severely wounded, to the
•effusion of his blood, the serious injury of his person, and the danger
of his life ; and this you the said John Thomson did, with intent in so
doing, or by means thereof, to murder or to maim, disfigure or disable,
the said John K«rr Gray, or with intent to do him some other grievous
bodily harm.
The prisoner pleaded insanity as a special defence.
The evidence on the part of the Crown conclusively
established that the pannel had fired at, and very
dangerously wounded Gray, as charged, and also went
to rebut the plea of insanity.
The prisoner also adduced evidence to shew that he
Geo. IV,
.:. 38.
AND CIRCUIT COURTS OF JUSTICIARY. 131
was subject to fits of derangement, especially after No. 9.
drinking, and also that this had been especially the case Thom»on.
since the pannel had received an injury on the head in High Court,
America some years before. None of the witnesses, i848.'
liowever, spoke to the existence of any mark on his head con. 10th
prior to the time when he was in prison.
Broun, in addressing the Jury, on behalf of the pan-
nel, proposed, that he should uncover his head, in order
that the Jury might see the mark which was said to
have been occasioned by the injury in America, spoken
to by the witnesses in exculpation.
The LoED Justice-Clerk. — That cannot be allowed.
You have not shewn the existence of any such mark
prior to the time of the offence. The first mention we
have of it is when he was in prison. How then can it
be exhibited for the purpose you propose ?
Broun. — The pannel is a production, and as such
may be looked at by the Jury.
The Lord Justice-Clerk. — Not for such a purpose
and in such a way as you propose. You should have
laid a foundation, by shewing the prior existence of such
a mark, if you intended to ask us to allow this.
The Jury unanimously found the pannel guilty of the
statutory charge as libelled, but recommended him to
mercy.
In respect of which verdict of Assize, the said John
Thomson was sentenced to be hanged at Greenock on
the 23d December 1848.'
^ The sentence was afterwards commuted to transportation for life.
132 CASES BEFORE THE HIGH COURT
Present,
Dec. i. The Lord Justice-Clerk,
1848.
Lords Moncreifp, Medwyn, and Cockburn.
Alexander Mackean, Suspender — A. Carnegy Ritchie^
Archibald Wilson, Respondent— iV«ai»«».
Suspension. — Held, 1st, that it is not necessary, in a summary case in
the Police Court, that the pannel should have served upon him a writ-
ten copy of the complaint before trial ; and, 2d, that it is no ground
of suspension that he was not allowed forty-eight hours to prepare
his defence, he not having asked delay at the time.
No. 10. This was a suspension of a sentence pronounced by
^^wiieon."' *^6 Bailies of the City of Glasgow, whereby the suspender
High Court. ^^® Sentenced to sixty days imprisonment, as having
?84'8^" ^^^"^ guilty of ' fraud and imposition,' in obtaining a
- shilling from the Inspector of Poor for the Gorbals
Parish of Glasgow.
The circumstances of the case were as follows : —
The suspender, who was by trade a spinner, and who
had been, shortly before the date of the alleged wrong-
ful imprisonment, in the Glasgow Infirmary for fever,
was unable, on his dismissal from the hospital, to resume
his employment, in consequence of boils on his hands.
He accordingly took employment as a ' piecer' or tyer
up of threads, being the work usually assigned to girls.
Having carried on this work for some time, at which he
could not earn suflBcient for the support of himself and
family, he voluntarily gave it up, assigning the state of
his health as a reason to his master, and obtaining leave
to substitute a girl until he should be able to return. On
the same morning on which he thus left his employment
he applied for relief to the inspector, and declared that
he was out of employment. His application was refused,
as was also a second. Having made a third application,
AND CIRCUIT COURTS OF JUSTICIARY. 133
relief was given to the extent of one shilling. Three jiil^'^S'*
hours afterwards he was apprehended, and taken the fol- wiison. '
lowing morning before the Bailies, who sentenced him to High Court'.
• i 1 • • - , Dec. 9,
sixty days imprisonment, as having obtained the shilling i848.
by fraud. Suspension.
Mackean presented his note, which came on this day
to be heard.
Caenegy Ritchie, for suspender. — Although the crime
of falsehood, fraud, and wilful imposition, was competent
to be tried summarily before a Police Court, yet, inasmuch
as the legislature, by providing in certain Police and other
Acts of Parliament for the trial of cases summarily, had
thereby deprived the lieges, in these cases, of the com-
mon law privilege of having the evidence taken down in
writing, it had, in lieu thereof, provided certain equiva-
lents ; one of these was that a written copy of the charge
or complaint must be served on the accused a sufficient
time before the trial, in order to enable him to prepare
his defence; and another, that he should be allowed
at least forty-eight hours to prepare his defence. In
the suspender's case, no written copy of the charge
was served on him ; so far from that being the case, no
written copy of the complaint or charge existed at the
time of trial, for on its being applied for some days after
the trial by an agent who was then taking an interest in
the suspender, it was not and could not be produced,
and it was only after a threat of a suspension before the
Justiciary Court that a written copy was at length pre-
pared. The accused was not allowed forty-eight hours
wherein to prepare his defence ; and, being locked up
a prisoner in the Police-Office, he could not get access
to any friends who might have advised and assisted
him; and he was a simple ignorant man, who could
not be presumed to know his legal rights.
The Court, without calling for a reply, refused the
suspension, and decided that it was not necessary that a
written copy of the charge or complaint should be served
on the accused in order to summary trial ; and, in regard
134 CASES BEFORE THE HIGH COURT
No. 10. to what was urged for the suspender, that he was entitled
Maekean e. iiJT ,-,■,• !_•
Wilson, to have had forty-eight hours wherein to prepare nis
HighCourt. defence, that this was contingent on the pannel request-
1848.' ing it at the time.
Suspension.
C. Spencb, S.S.C., Suspender's Agent. Webster, W.&, Respondent's Agent.
Present,
Tbe Lord Justice-Clerk,
Ceo. 11.
'848. Lords Moncreifp and Medwyn.
Her Majesty's Advocate — Craufurd A.D. — Deas^ A.I>..
James Hoyes — Larimer.
Theft — Amotio. — Circumstances in whicb it was held that the amotio
was not sufficient to constitute the crime of theft.
James Hoyes was charged with Theft, committed by
No. TL means of Housebreaking; as also with Housebreaking
u^Z ^^*^ Intent to Steal.
HighCourt
Dec 11. In so PAR AS, on the night of the 25th, or morning of the 26th, day
of September 1848, or on one or other of the days of that month, or of
Theft, &e. August immediately preceding, or of October immediately following,
you the said James Hoyes, did, wickedly and feloniously, break into-
and enter a store-room, situated in or near Dickson's close, in or near
the Cowgate of Edinburgh, then and now or lately occupied by Richard
Sandilands, cowfeeder, then and now or lately residing there, and this
yon did by opening the door thereof, by means of a false key or pick-
lock, or forcing open the door by some means to the prosecutor un-
known, and entering thereby ; and having thus, or by some other
means to the prosecutor unknown, obtained entrance into said store-
room, you the said James Hoyes did, then and there, wickedly and
fejlpniously, steal and theftuonsly away take, a cheese, weighing twenty
pounds, or thereby, the property, or in the lawful possession, of the-
said Richard Sandilands : Or otherwise, time above libelled, you
the said James Hoyes did, wickedly and feloniously, break into and
enter the said store-room in manner above mentioaed ; and this yoa
did with intent to steal.
AND CIRCUIT COURTS OF JUSTICIARY. 135
The evidence against the pannel was, that he had No. ii.
broken into a store, adjoining the house of Sandilands, Hoyes.
containing cheeses, which had been carefully left shortly High Court.
before placed in pairs, one upon the other. The pannel Tsis. '
was taken in the room by a policeman, and one cheese Theft, &c.
was found to have been removed half off the one under it.
LoRiMER, for the pannel, contended, that the species
Jacti proved did not amount to the crime of theft, as
there had not been any sufficient amotio to shew an
actual taking, which was always required in a case of
theft.
The Lord Justice-Clerk, said, that the amotio here
proved was not, in the opinion of the Court, sufficient
to justify a conviction for theft, as it might easily have
occurred by displacement, when the pannel was skulk-
ing about to avoid detection ; and they directed the
Jury to acquit on that charge. Even the proof of any
displacement was very unsatisfactory, as it all depended
on every row of the cheeses having been placed regu-
larly above the other, and each cheese on the centre of
the one below. This was too hard a presumption.
On the charge of housebreaking with intent to steal,
the Jury uimnimously found the prisoner guilty.
In respect of which verdict of Assize, the pannel was.
sentenced to be imprisoned for eighteen months.
Her Majesty's Advocate. — Graufurd A.D — J. M. Bell A.I^,
AGAINST
Mary Sutherland and Isabella Gibson or Murray. — Lorimer..
IDoCNTERiPEIT CoiN GuiLTY KNOWLEDGE StAT. 2d AND 3(1
Will. IV., c. 34.^"Where two pannels were charged, inter alia,
with having base coin in their possession at the time of uttering
136 CASES BEFORE THE HIGH COURT
No- 12. other base coin : 1st, Held that it was sufficient to establish the
Sutherland offence under the statute against both prisoners, to shew that they
& Isabella were acting under a common design in uttering, although one of
them onlj had possession of the base coin. 2d, Direction to the
Dec. 1 1. ' Jufyj that, in judging of the sufficiency of the proof of a charge of
1848. uttering base money, the Jury were entitled to take into considera-
Con. 2d & tion that the paunel had been previously convicted of an offence
^A WTill TV J. •'
e. 36 ' against the coinage acts, as an evidence of guilty knowledge.
Mary Sutherland and Isabella Gibson or Murray
were charged, —
That albeit, by an Act passed in the second year of the reign of
His late Majesty King William the Fourth, chapter thirty-four, inti-
tuled ' An Act for consolidating and amending the Laws against of-
' fences relating to the Coin,' it is enacted, by section seventh, ' That
' if any person shall tender, utter, or put off, any false or counterfeit
' coin, resembling, or apparently intended to resemble or pass for, any
' of the King's current gold or silver coin, knowing the same to be
' false or counterfeit, every such offender shall, in England and Ire-
' land, be guilty of a misdemeanour, and in Scotland of a crime and
• offence, and, being convicted thereof, shall be imprisoned for any
' term not exceeding one year ; and if any person shall tender, utter,
' or put off, any false or counterfeit coin, resembling, or apparently
' intended to resemble or pass for, any of the King's current gold or
' silver coin, knowing the same to be false or counterfeit, and such
' person shall, at the time of such tendering, uttering, or putting off,
' have in his possession, besides the false or counterfeit coin so tender-
' ed, uttered, or put off, one or more piece or pieces of false or counter -
', feit coin, resembling, or apparently intended to resemble or pass for,
' any of the King's current gold or silver coin, or shall, either on the
' day of such tendering, uttering, or putting off, or within the space of
' ten days then next ensuing, tender, utter, or put off, any more or
' other false or counterfeit coin, resembling, or apparently intended to
' resemble or pass for, any of the King's current gold or silver coin,
' knowing the same to be false or counterfeit, every such offender
' shall, in England and Ireland, be guilty of a misdemeanour, and in
' Scotland of a crime and offence, and, being convicted thereof, shall
' be imprisoned for any term not exceeding two years ; and if any
' person who shall have been convicted of any of the misdemeanours, or
' crimes and offences, hereinbefore mentioned, shall afterwards commit
' any of the said misdemeanours, or crimes and offences, such person
' shall, in England and Ireland, be deemed guilty of felony, and in
' Scotland of a high crime and offence, and, being convicted thereof,
' shall be liable, at the discretion of the Court, to be transported be-
' yond the seas for life, or for any term not less than seven years, or
aiTd circuit courts of justiciary. 137
' to be imprisoned for any term not exceeding four years;' Yet tbce jjq_ jq,
IT IS AND OP VERITY, that you the said Mary Sutherland are guilty of Mary
the crimes and offences set forth in the above -quoted section of the & jgab^a
statute above libelled, or of one or more of them, actor, or art and Gibson,
part ; and you the said Isabella Gibson or Murray are guilty of the High Court,
crimes and offences, and high crime and offence, set forth in the said Dee. U.
section of the said statute, or of one or more of them, actor, or art and
part: In so fab as on the 18th day of September 1848, or on one or ojwmT fy
other of the days of that month, or of August immediately preceding, «. 36.
or of October immediately following, in or near the shop situated in
or near Adam Square, in or near Edinburgh, then and now or lately
occupied by Daniel White, then and now or lately spirit-merchant
there, you the said Mary Sutherland and Isabella Gibson or Murray
did, both and each, or one or other of you, wickedly and feloniously,
tender, utter, or put off, as genuine, a false or counterfeit coin, re-
sembling, or apparently intended to resemble, or pass for, a sixpence
piece of the Queen's current silver coin, you knowing the same to be
false or counterfeit ; and this you did, by then and there delivering the
same as genuine to Samuel Bates, then and now or lately shopman in
the employment of the said Daniel White, then and now or lately re-
siding in or near Murdoch's Close, High Street, Edinburgh, in payment
of a bottle or a pint bottle of ale, then and there purchased, or proposed
to be purchased, by you, you proposing to receive the balance in
change : Lireas (2.), time above libelled, and within or near the
shop or premises above libelled, you the said Mary Sutherland and
Isabella Gibson or Murray, both and each, or one or other of you, had
in your possession besides the false or counterfeit coin so tendered,
uttered, or put off, as above libelled, a false or counterfeit coin, re-
sembling, or apparently intended to resemble, or pass for, a sixpence
piece of the Queen's current silver coin : And you the said Isabella
Gibson or Murray have been previously convicted of the crimes and
offences set forth in the seventh section of the statute above libelled,
or one or other of them.
The pannel Sutherland pleaded guilty. The other
pannel went to trial.
It appeared from the evidence, that the two pannels
had gone together into a spirit shop for a dram, which
was mutually partaken of; that Sutherland had tendered
^ bad sixpence in payment, and that on being apprehend-
ed, another piece of base coin was foimd upon her.
There was no evidence against the other pannel, except
that she was in the company of Sutherland, and that she
K
138 CASKS BEFORE THE HIGH COURT
No- ^2. partook of the dram for which the bad sixpence was
Sutherland tendered.
Gibson.* LoElMER, for iMurraj, contended, that there was no
High Court, proof to connect the pannel Gibson with the offences to
ms!' which Sutherland had pleaded guilty.
Con. 2d & The Lord Justice-Clerk, in charging the Jury, said,
3d Will. IV. ^jjg^^ j£ ^]^gy considered that Murray was art and part
with Sutherland in the proceedings which formed the
subject of the present enquiry, then, although Sutherland
alone was the utterer of the base coin, and though no bad
money was found on Murray, they would be entitled to
find both guilty of the offences libelled, both having
gone on a common design.
His Lordship also directed them, that in respect of
the two previous convictions for the same offence, which
had been proved against the prisoner Murray, that they
were entitled to take them into calculation, as evidence
of guilty knowledge on the part of Murray (if they were
satisfied that the two pannels were acting in concert),
for they tended to shew that Murray was a trader in
base coin. At the same time he directed the Jury, that
in determining the weight to be given to such evidence,
they would have regard to the lapse of time since the
date of the last conviction, which, in the present instance,
was considerable, as diminishing the effect such evidence
might otherwise have had.
The Jury unanimously found the libel against the pan-
nel Gibson or Murray not proven.
In respect of which verdict of Assize, the said Isabella
Gibson or Murray was assoilzed simpliciter.
In respect of the judicial confession of the pannel
Mary Sutherland, she was sentenced to be imprisoned for
eighteen months.
AND CIECUIT COURTS OF JUSTICIARY. 1 39
Present,
The Lord Justice-Qlerk, Dee. 20.
1848. '
Lords Moncreiff, Medwyn, Cockbubn, and Wood.
Peter Phillips and William Ford, Suspenders — Moncreiff.
AGAINST
John Gross, Respondent — Neaves.
Police Court — Informality. — Circumstances in which a sentence
of a Police Court was set aside in consequence of the evidence not
having been reduced to writing.
This was a suspension of a sentence pronounced by No. is.
one of the bailies of the Burgh Court of Airdrie, pro- phii!^3&
ceeding on the following petition and complaint : — FordT
John Cross.
Unto the Honourable the Magistrates of Airdrie, or any of High Court.
' them officiating as Judge in the Police Court of Airdrie, — j g^g
The Complaint of John Cross, writer in Airdrie, Procura-
' tor-fiscal of Court for the Public interest.
' The Complaiuer charges Peter Phillips, miner, Airdrie ; John
' Gilraour, miner, Airdrie ; John Gray, miner, Airdrie ; and William
' Ford, miner or collier, Airdrie, with disorderly conduct and breach
' of the peace, actors or actor, or art and part : In so far as, on or
' about Wednesday, the 5th day of July 1848, and at or near the gar-
' den ground attached to Mavisbank Cottage, occupied by John Cross,
' writer in Airdrie, situated at or near Commonside, Airdrie, they all
' and each, or one or more of them, did wantonly and maliciously at-
' tack, molest, annoy, and use violent, threatening, abusive, and ob-
' scone language towards Isabella Copland, servant to the said John
' Cross, and others ; and also, did then and there, otherwise conduct
' themselves in a riotous and disorderly manner, to the annoyance of
' the lieges, and in breach of the peace.
I (Signed) ' John Cross, Procurator-Jtscal.'
The circumstances out of which the complaint arose
were as follows : — The respondent is proprietor of a small
140 CASES BEFORE THE HIGH COURT
No. 13. cottage and garden, situated in Airdrie, Adjoining his
Phillips & fence was a well, situated on ground belonging to his
FordT superior, with whose consent all parties in the neigh-
^^?!^^^- bourhood had been in the practice of supplying them-
^Lfc^o!*" selves with water therefrom. The respondent, wishing
^°*"- to appropriate the well to himself, caused a lid, secured
Suspension jjy j^ padlock, to be placed on the top thereof, which was
removed by order of the superior. The respondent
afterwards, in order to drive away the people who were
accustomed to resort there for water, allowed his family
and servants to cast clay and rubbish into the well, and
thereby to render the water unfit for use. On the 5 th
of July 184S, the complainers went to the well for water.
When there, they found the respondent's maid-servant
casting rubbish over a wall from his garden, part
of which fell into the well, and rendered the water
unfit for use. Whereupon an altercation ensued, in the
midst of which the respondent appeared, and having
charged the complainers with a breach of the peace, he
thereafter presented the preceding petition to the Police
Court. On the same day, a warrant to apprehend
the complainers, and others mentioned in the petition,
was granted by one of the bailies. This warrant was
never formally served upon or intimated to th^ com-
plainers ; but, on the 10th of July, they appeared before
another bailie, who, having partially heard the case, at
the request of the respondent, committed them to the
prison of Airdrie for farther examination, — the re-
spondent positively objecting to their being liberated on
bail. On the 13th, the case was heard in the Police
Ofiice, with closed doors, before a single judge, and was
taken up .without any adjournment, — no agent being
allowed to be present on behalf of the complainers.
After hearing evidence on both sides, — no note or record
of which was reduced to writing, the judge pronounced
sentence, decerning the complainers to pay respective-
ly a fine of 30s., or, failing payment, to be imprisoned
in the prison of Airdrie for twenty days. The fine not
aKd circuit courts op justiciary. 141
being paid, they were afterwards, on the same evening, No. 13.
taken to prison, under the following warrant : — Phiiups &
William
' At Airdrie, the ISth day of July 1848 years. — Sitting in judgment, . *'°''^ "■
' Charles Robertson, Esquire, one of the magistrates of Airdrie. — The —_
' cause being called, the defenders appeared, and the bailie having ^^^ '^ '
' heard them in answer to the complaint, and examined on oath, in 1848.
' their presence, the witnesses adduced, Finds the defenders guilty of Suspensiou.
' the offences charged in the within complaiijt ; and, in respect thereof,
' decerns and adjudges the said defenders, Peter Phillips, John Gil-
' mour, John Gray, and William Ford, to be imprisoned in the prison
' of Airdrie, and detained therein, subject to the rnles and regulations
' thereof, for the period of twenty days from this date.
(Signed) ' Charles Robertson, Bailie.'
Phillips and Ford suspended, and their cases were this
day heard.
MoNCREiFF, for the suspenders, — The whole proceed-
ings were irregular and informal, inasmuch as there was
no proof reduced to writing, on which the sentence had
proceeded {Penman v. Watts, High Court, Nov. 24. 1845,
Broun, vol. ii. 586.) He was then stopped.
Neaves, for the respondent — The case is not compe-
tently here. By the 72d section of 1st and 2d Geo. IV.
c. 60 (the Airdrie Police Act), it is provided that any
aggrieved person may appeal to the Circuit Court, and
that was the remedy which the complainers should have
taken.
Lord Medwyn. — Surely a man in jail is not to en-
dure his full imprisonment before he appeals. He would
then be met with another objection, that there was no-
thing to suspend. In this case the whole proceedings
are plainly inept, and I think we ought to suspend, with
expenses.
The other Judges concurred.
142 CASES BEFORE THE HIGH COURT
John Eitchie, Suspender — Deae.
AGAINST
David Pilmbr, Eespondent — Neave$,
Suspension — Informality of Citation. — Held, that where a person
has been cited as a witness, and preqpgnosced as such, he cannot,
on his attendance in obedience to his citation, be summarily put
to the bar, and tried as being guilty of the offence, in respect of
which he had been required to attend as a witness.
Ritchie*B "^^^^ Suspensioii originated in the following circum-
P'lmer. stances : —
High Court. The Suspender who was master of the schooner
1848. ' ' Jules' of Dundee, had bought at Revel three pork
Suspension, hams, and other articles of diet, as he alleged, for his
own use ; as also, some beef at a small price for the use
of the vessel. During the voyage home, having some
ladies as passengers, he had used for their accommodation
two of the pork hams he had bought for himself. He
had also cured as hams two portions of the beef which he
had bought for the use of the vessel. The value of the
beef hams so cured, was much less than that of the pork
hams which had been consumed.
On the arrival of the vessel at Dundee, and before
any adjustment of accounts between the suspender and
the shipowners, the suspender, in the presence of the
ship's agent, ordered the cook to take two beef hams
which he had cured on board out of the vessel, and
carry them on shore for his own use.
The ship's agent having given information against the
cook, a criminal complaint of theft was preferred against
him at the instance of the respondent, and the morning
when the same was coming on to be heard, the suspen-
der was cited as a witness in the following terms : —
' I, Joseph Hanna, Constable of the Harbour Police Court of Dun-
' dee, and surrounding bounds, over which the powers and regulations
' of the Dundee Police Act and Dundee Harbour Acts extend, sum-
AND CIRCUIT COURTS OF JUSTICIARY. 143
mon you, John Ritchie, now or lately Shipmaster, residing in No. 14.
Broughty Ferry, to compear before the Judge of said Harbour Po- p?~g-*'
lice, in a Court to be held in the Burgh Police Court-Room, Dun
dee, upon the 5th day of October 1 848, in the hour of cause, half- jfeo. 20.
' past nine o'clock forenoon, to bear evidence for the Complainer, in 1848.
' the complaint at the instance of David Pilmer, Superintendent of Suspension.
' Harbour Police, against Charles Jameson, sailor, accused with the
' crime of theft, with certification : This I do upon the 5th day of
' October 1848. Joseph Hanna, H. P. Constable.'
This citation was served upon the suspender at half-
past six in the morning, at Broughty Ferry, a distance
of four miles from Dundee.
On the suspender's arrival in Dundee, shortly before
the time of hearing the complaint, he was precognosced
by the respondent, and told to wait in a private room.
Shortly afterwards, he was informed that he would be
jointly prosecuted along with Jameson the cook ; and
was accordingly, after the lapse of half an hour, placed
at the bar, together with him, on the following com-
plaint, which had been prepared in the mean time : —
' Unto the Honourable the Judges actiug in the Police Court for
' the Burgh of Dundee, and also for the Harbour and those parts of
' the River or Frith of Tay which are within the limits and precincts
' of the Port and Harbour of Dundee, and over which the powers and
' regulations of the Dundee Police Act and Dundee Harbour Act ex-
' tends ; Humbly complains David Pilmer, Superintendent of the
' Dundee Harbour Police, and Procurator-Fiscal of Court for the
' public interest, against John Ritchie, shipmaster, residing in Broughty
' Ferry, and Charles Jameson, sailor or sailmaker, residing at Hawk-
' hill, Dundee, defenders, for being guilty of the crime of theft, actors or
' art and part : In so far as, on Wednesday the 4th of October 1848
' years, from the schooner ' Jules' of Dundee, then lying in Earl
' Grey's Dock, at the Harbour of Dundee, said defenders did, both
' and each, or one or other of them, wicked and feloniously steal, and
' theftuously away take, two beef hams, weighing 40 lbs. or thereby,
' the property or in the lawful possession of Baxter Brothers and
' Company, merchants and shipowners in Dundee, and which property,
' stolen as aforesaid, does not exceed in value £10 sterling. It ia
' therefore craved, that warrant be granted for apprehending and
' carrying the said defenders into Court, to answer to this complaint,
' and for citing witnesses for both parties; and that said defenders be
144 CASES BEFORE THE HIGH -COURT
No. 14. ' thereafter punished according to law, or such other judgment as the
Ritchie V. i ^g^gg jjj^y require. — According to Justice,
. 1_ < David Pilmer, Superintendent.'
High Court.
1848 ■ On this complaint, the Judge granted the following
Suspension, deliverance forthwith : —
' Dundee, bth October 1848. — ^The Judge grants warrant to officers
' of police for apprehending and bringing the said defenders, John
' Ritchie and Charles Jameson, into Court, and for citing witnesses
' for both parties. Peter Hean, Bailie.'
When placed at the bar, the suspender, as alleged by
him, repeated what he had said to the respondent, that
the hams had been taken out of the vessel by his orders,
under the circumstances above set forth. This was
treated as a plea of guilty by the Police Judge, who
thereupon pronounced the following sentence : —
' Dundee, 5th October 1 848. — Having considered the foregoing
' complain^, examined the defenders, and the defender John Ritchie
' having confessed that he is guilty as libelled. Finds him guilty in
' terms of his own confession ; and having heard evidence adduced
' against the defender Charles Jameson, Finds the complaint proven
' against the said Charles Jameson : Therefore, adjudges and ordains
' the defenders to be imprisoned in the Jail or Tolbooth of Dundee,
' in modum jprnnce, for the space after mentioned, — viz., the defender
' John Ritchie, for sixty days, and the defender Charles Jameson, for
' thirty days, both from this date ; and, during the period of imprison-
' ment, to be kept at hard and continued labour in the Bridewell de-
' partment of said Jail or Tolbooth, subject to the rules and regula-
' tions of the Establishment, and grants warrant accordingly : Or-
' dains the stolen property to be restored to the true owners, designed
' in the complaint. Peter Hean, Bailie'
This sentence was immediately carried into effect ;
whereupon Ritchie suspended, on the ground that, hav-
ing been cited as a witness, and precognpsced as such, it
was incompetent afterwards to put him^o the bar as a
criminal, and proceed to convict him on the statement
he had made, whilst considering himself a witness.
Pleaded for the suspender, that this was an irregular
and illegal proceeding. No person who had been cited as
AND CIKCDIT COURTS OF JUSTICIARY. 145
a witness could competently be precognosced in that cha- No. u.
IP 11 . 1 11 n Ritchie -p.
racter, and alterwards be put into the dock on a tew pumer.
minutes notice, and tried forthwith, without opportunity HighCom-t.
to obtain advice, and get that assistance which was ne- ms. '
cessary to enable him to refute so serious a charge ; case Suspension,
of Robertson v. Mackay, High Court, July 21. 1846,
(Arkley, p. 114).
2. The alleged plea of guilty on which the sentence
professedly proceeded, was altogether a mistake. In
point of fact, it was a plea of not guilty, inasmuch as
the facts shewed that the taking was lawful.
Pleaded for the respondent — The Judge found that
the suspender confessed his guilt, and he was the proper
judge to say whether he had done so or not. It was
impossible to ascertain what were the words used by the
suspender at the time, and consequently the Court could
not enquire whether the inference which the Judge drew
was well founded, or otherwise.
2. There was no illegality or irregularity. The police
had acted honestly throughout ; they treated him as a
witness, so long as they thought him innocent of the
crime; and when they had discovered him to be art and
part, there was no necessity for serving upon him any
complaint, or citing him to appear, as he was already in
custody. Besides, it was not averred that he had re-
quested time to prepare a defence when the case was
heard.
The CouET, without entering on the question, wher
ther the statement of the suspender warranted the
Bailie to consider it as a plea of guilty, unanimously
sustained the suspension, on the ground that the citing
a person as a witness so short a time before the trial of
the party against .whom he was to have been adduced —
precognoscing hiin as such, and then turning round and
charging him on his own evidence, so procured, was an
irregularity so flagrant, that no sentence could be sus-
tained which had followed thereon ; and observed, that
146 CASES BEFORE THE HIGH COURT
No. J4. the case of Robertson v. Mackay entirely governed the
Ritchie d.
Piimer. pressnt.
■ High Court.
"fais." The sentence was accordingly suspended, with ex-
Suspension, penseS.
WoiHEESPooN & Mack — Lockhart, Huni£b, & Whuehead. — Agents.
Methven, Saspender. — P. Frater.
Glass, Respondeat. — Neaves.
Suspension — Master and Servant — Statute 4th Geo. IV. o. 34.
— Held, that a judgment of the Quarter Sessions both discharging
the servant and abating the wages, was unwarranted by the statute.
No. IS. This was a suspension of a decision of the Quarter-
^^^Giass '' Sessions of the county of Fife, reversing the decision
High Court °^ *^® Justiccs on a complaint against the suspender,
Dee. 20. that he had absented himself from his master's service
1848.
-before the period of his engagement had expired. On
the original hearing before the Justices, they found in
favour of the suspenderj and dismissed the complaint,
whereupon the respondent having appealed to the Quar-
ter-Sessions, that judgment was reversed, and it was
decerned that the suspender should be discharged from
service, and should also abate all wages.
Feaser, for the suspender, argued, that this decerni-
ture was more than the statute authorised. The third
section of 4th Geo. IV, cap. 34. only authorised alterna-
tive penalties. Quarter-Sessions might either discharge,
or abate the wages which had been earned, but could
not do both, as those penalties were not cumulative
under the statute.
Neaves. — The sentence was not objectionable on the
AND CIRCUIT COURTS OF JUSTICIARY. 147
ground alleged. The punishment inflicted was merely No. ifi.
It i ii ^ , 1 - 1 , , , , , 1 1 Methven v.
that the wages tor the whole term should be abated, and Glass.
the discharge from service followed as a necessary con- High Court.
Dec. 20.
sequence. i848.
Lord Justice-Clerk. — How can you abate what is suspeuBion.
not yet due.
Neaves. — Take it that it discharges him from the
service, it follows that he would get no wages.
Lord Justice-Clerk. — Yes, he would get wages up to
the period when he was discharged. The principle is to
prevent desertion in search of better wages, but the
penalty imposed is either dismissal from service, or for-
feiture of wages already earned. These are in the
alternative, whereas you have proceeded to impose both.
That is clearly beyond the statute.
Lord Moncreiff. — If you make the sentence extend
to wages not due at the period of dismissal, then it is
repugnant and insensible. If it had been your object to
mulct the suspender of his wages for the whole term, in-
stead of dismissing him from the service, you should
have ordained him to serve the whole time without
wages.
The other Judges concurred.
The note was accordingly passed, with £5, 5s. of
modified expenses.
Andrew Mhrrat, W.S. — John Murdoch, S.S.C. — Agents.
148 CASES BEFORE THE HIGH COURT
Robert Craig, Suspender. — Neaves.
AGAINST
John Mure Steel. — Deas.
Police Court — ImiEGnLARiTY op Citation. — Held, that it was in-
competent to proceed iu a Police Court against a pannel who had
been cited on the previous day to that on which the case was heard,
to answer a different charge.
No. 16. This suspension arose in the following manner. On
stelh * the 12th of December 1848, the respondent presented a
High Court, petition to the Justices of the Peace for the county of
fsis. ' Lanark, for citation of the suspender, on a charge of
Suspension, theft, and on that day the suspender found bail for his
appearance on the 14th. On the 13th a citation was
regularly served, requiring him to appear on the 14th,
to answer to the charge of theft for which he had given
bail. When the case came on he was charged with
theft or breach of trust alternatively. He was attended
by his agent, and made no objection to the regularity of
the charge, and was thereupon afterwards convicted by
the presiding Justices.
Having presented his bill of suspension, which came
on this day to be heard, the Court, without hearing
Neaves for the suspender, called on
Deas, for the respondent, who urged that there was
no ground for suspending the conviction, as the party,
who acted under advice at the time when the original
complaint was heard, took no objection to the regularity
of the proceedings, and thereby homologated any mistake
which might have been made. It was as if the party,
having been present in the Police-office, had been
charged on a regular complaint for theft or breach of
trust, without ever having been cited at all. If, in such
circumstances, he chose to go to issue, without objecting
that he had not been cited, he could not afterwards ob-
ject when a conviction followed. No doubt the citation,
which was actually served in this case, was inapplicable,
AND CIRCUIT COURTS OF JUSTICIARY. 149
and must be held to be out of the case, which must be No. le.
considered as if it commenced when the parties came to steei. '
the bar on the 14th. High court.
The Lord Justice-Clerk. — There is no extremity of Tsis. '
time in this case, requiring us to hold the proceedings Suspension.
good in respect thereof. There was a regular complaint
made on the 12th, and bail was taken on that day for
the appearance of the suspender on the 14th, to answer
to a charge of theft. Then on the 13th there is a cita-
tion to answer to the same charge. When the case is
called on the 14th, the party is charged with theft or
breach of trust alternatively. This, I conceive, to be an
incompetent proceeding. I cannot think in these sum-
mary cases that it is competent to cite a party to answer
for one offence, then, without notice, on his appearance
in obedience to the citation, to charge him with another.
I think this objection is insuperable, and that the con-
viction ought to be suspended, with expenses.
The other Judges concurred.
WoTHERspooN & Mack, W.S.^John Leishman, W.S. — Agents.
Present,
The Lord Justice-Clerk. Jan. 2.
1849.
Lords Mackenzie and Cockburn.
Her Majesty's Advocate — Sol.-Gen. T. Maitland — Graufurd
A.D.
against
John Hamilton and Mary Garden or Hamilton. — Moncreiff.
Beset op Theft — Married Woman. — Eule stated, that it was not
enough to warrant conviction of a married woman of reset of theft,
that she had endeavoured to conceal some of the articles from the
police ; the Jur j being satisfied that she did this, not because she
had been concerned in the reset, but merely to screen her hus-
band.
150 CASES BEFORE THE HIGH COURT
No 17. John Hamilton and Maey Garden or Hamilton,
John ■
Hamilton were charged with Reset of Theft :
and Mary °
Hamilton.
-— -r In so fab as (1.), on one or other of the days of the month of April
Jan.°2.'^ ■ 1846, or of March immediately preceding, or of May immediately fol-
1849. lowing, the particular day being to the prosecutor unknown, some per-
Reset of son or persous to the prosecutor unknown, having wickedly and felo-
Theft. niously stolen and theftaously carried away from the house or pre-
mises in or near Nicolson Street of Edinburgh, then and now or lately
occupied by John Crichton, tailor and clothier, then and now or lately
residing there, a silver watch, the property, or in the lawful possession,
of the said John Crichton : As also (2.), on one or other of the days
of the mouth of June 1 848, or of May immediately preceding, or of
July immediately following, the particular day being to the prosecutor
unknown, some person or persons to the prosecutor unknown, having,
within or near a house in or near the Caiiongate of Edinburgh, the oc-
cupant or occupants of said house being to the prosecutor unknown,
wickedly and feloniously, stolen and theftuously carried away from the
pocket or person of Emanuel Burton, a cabinet-maker, then and now
or lately residing in Heriot Mount, in or near Edinburgh, a silver
watch, and a guard-chain, the property, or in the lawful possession, of
the said Emanuel Burton : As also (3.), on the 8th day of June 1848,
or on one or other of the days of that month, or of May immediately
preceding, or of July immediately following, some person or persons
to the prosecutor unknown, having wickedly and feloniously stolen and
theftuously carried away from the house or premises in Broxburn,
parish of Uphall, and county of Linlithgow, then and now or lately
occupied by John Bruce, merchant, then and now or lately residing
there, a gold watch, the property, or in the lawful possession, of the
said John Bruce : As also (4.), on the night of the 19th, or morning
of the 20th, day of June 1848, or on one or other of the days of that
mouth, or of May immediately preceding, or of July immediately fol-
lowing, some person or persons to the prosecutor unknown, having,
within or near a house in or near the Leith Wynd of Edinburgh, oc-
cupied by Janet Shaw, or by some other person to the prosecutor un-
known, wickedly and feloniously, stolen and theftuously carried away
from the pocket or person of David Blaikie, mason, then and now or
lately residing in or near the Links of Burntisland, in the parish of
Burntisland, and county of Fife, a silver watch, the property, or in the
lawful possession, of the said David Blaikie : As also (5.), on the
night of the 22d, or morning of the'23d, day' of June 1848, or on one
or other of the days of that month, or of May immediately preceding,
or of July immediately following, some person or persons to the pro-
secutor unknown, haying, within dr near a house in or near the Leith
Wynd'of Edinburgh, then or recently occupied by Ann Laurie, then
or recently before residing there, or by some other person or persons
AND CIRCUIT COURTS OF JUSTICIARY. 151
to the prosecutor uaknown, wickedly and feloniously, stolen and theftu- Noi ] 7.
ously taken away from the pocket or person of Hugh Norris, surgeon, ufmiu..
then residing in Union Place, in or near Edinburgh, and now or lately and Mary
at South Petherton, in the county of Somerset, in England, a silver Hamilton.
watch, and a pencil-case, the property, or in the lawful possession, of High Court-
the said Hugh Norris : As also (6.), on the night of the 23d, or morn- isig.'
ing of the 24th, day of June 1848, or on one or other of the days of that _ .
month, or of May immediately preceding, or of July immediately follow- Theft,
ing, some person or persons to the prosecutor unknown, having, within
or near a house in or near the Leith Wynd of Edinburgh, the occupant
or occupants of said house being to the prosecutor unknown, wickedly
and feloniously, stolen and theftuously taken away' from the pocket or
person of James Cairns, a mason, then and now or lately residing in
Home Street of Edinburgh, a silver watch, the property, or in the lawful
possession, of the said James Cairns : As also (7.)) on the night of the
7th, or morning of the 8th, day of July 1848, or on one or other of the
days of that month, or of June immediately preceding, or of August
immediately following, some person or persons to the prosecutor un-
known, having, within or near a house in or near the Leith Wynd of
Edinburgh, the occupant or occupants of said house being to the pro-
secutor unknown, wickedly and feloniously, stolen from George Simp-
son, then and now or lately a servant in the employment of Thomas
Macdougal Brisbane, Esquire, and then and now or lately residing at
Brisbane, in the parish of Largs, and county of Ayr, a silver watch,
the property, or in the lawful possession, of the said George Simpson :
As ALSO (8.), on the 2d day of August 1848, or on one or other of the
days of that month, or of July immediately preceding, or of September
immediately following, some person or persons to the prosecutor un-
known, having, within or near a house in or near the Leith Wynd of
Edinburgh, the occupant or occupants of said house being to the pro-
secutor unknown, wickedly and feloniously, stolen and theftuously
taken ?.way from the pocket or person of Koderiok M'Kenzie, plate-
layer, then and now or lately residing with John Jenkinson, farm-ser-
vant, at Ballencrieff, in the parish of Aberlady, and county of Had-
dington, a silver watch, the property, or in the lawful possession, of
the said Eoderick M'Kenzie : As also (9.), on the 22d day of August
1848, or on one or other of the days of that month, or of July imme-
diately preceding, or of September immediately following, Alexander
M'Kay and Thomas Ogilvie, both now or lately prisoners in the prison
of Edinburgh, or some other person or persons to the prosecutor un-
known, having wickedly and feloniously stolen and theftuously car-
ried away from the house in Hanover Street, in or near Edinburgh,
then and now or lately pcoupied by James Gravett, flesher, then and
now or lately residing there, a brooch, the property, or in the lawful
possession, of the said James Gravett : As also (10.), on the 30th day
of August 1848, or on one or other of the days of that month, or of
152 CASES BEFORE THE HIGH COURT
No. 17. J"ty immediately preceding, or of September immediately following,
John some person or persons to the prosecutor unknown, having, at some
and Mary plS'Ces within or near Edinburgh, the particular place being to the pro-
Hamilton^ secutor unknown, wickedly and feloniously, stolen and theftuously
High Court, taken away from the pocket or person of "William Clark, spirit-dealer
*!.*"• ^" in the Low Calton, in or near Edinburgh, then and now or lately re-
'■ — '- — siding there, a gold watch, a gold chain, and a key, the property, or
Theft '" *^® lawful possession, of the said William Clark ; you the said John
Hamilton and Mary Garden or Hamilton did, both and each, or one
or other of you, within the period between the dates respectively above
libelled, as the dates of the thefts respectively above libelled, and the
7th day of September 1848, and within or near the house or premises
in theTCanongate above libelled, then and now or lately occupied by
you, or one or other of you, or at some other place or places to the
prosecutor unknown, the particular time and place being to the prose-
cutor unknown, wickedly and feloniously, reset and receive the several
articles above libelled, or part thereof, the same having been respec-
tively stolen as above libelled, you well knowing the same to have
been stolen :
The evidence against the pannels consisted of the per-
sons who had been robbed of the various articles libelled,
and the police, M^ho had found the articles concealed in
a secret hole in the wall of Hamilton's house, with the
exception of one watch, which was found on the person
of the female prisoner, by the female searcher at the
police station.
It was not shewn when or where any of the articles
had been resetted.
The occupation of the male prisoner was that of a
hawker, and his wife usually took charge of the shop
and premises in Edinburgh, where the police found the
articles.
MoNCREiFF, for the female prisoner, contended that
there was no evidence against her. The fact of the
watch having been concealed on her, was perfectly con-
sistent with her innocence, as she might have secreted it
during the search, in order to screen her husband, and
as to the other articles, it had not been shewn that they
were ever in her separate possession, so as to infer any
guilt against her.
AND CIRCUIT COURTS OF JUSTICIARY. 153
The Lord Justice-Clerk directed the Jury, that if No. 17.
•' John
they thought the woman had merely concealed the watch Hamuton
to screen her husband, and had had no concern in the HamiitOTf.
resetting of it, whether as managing the shop or other- High Court,
wise, they must acquit her. No doubt, a married wo- '^^Igl
man was answerable criminally for any act of reset of K«setof
theft of which she was guilty, whether as sole actor or ''^''^^*-
art and part therein. But it would not be enough to
infer that she was so guilty, if, after the offence had been
committed, she endeavoured to assist her husband in
avoiding detection by concealing the article. Every such
case, however, depended on the actual facts, of which
the Jury were to judge.
The Jury found John Hamilton guilty, and the libel
not proven against the woman.
In respect of which verdict of assize, the said John
Hamilton was sentenced to be transported for ten years,
and the said Mary Garden or Hamilton was assoilzied
simpliciter, and dismissed from the bar.
Present,
Feb. 6.
The LoBD Justice-Clerk, 1849.
Lords Moncbeiff and Cockburn.
Her Majesty's Advocate — Craufurd A.D. — E. F. Maitland A.D.
AGAINST
Alexander James Petty Menzies. — Moncreiff.
Falsehood, Fraud, and Wilful Imposition — Forgery. — 1. Direc-
tion to the Jury as to what was necessary to support a charge of
Falsehood, Fraud,, and Wilful Imposition. Held, 2d, That it was
sufficient, in the absence of counter proof, to establish that the
Christian name of the prisoner was different from that which he had
used on the forged instrument, that he had given another name to
the Sheriff, and answered to the indictment framed conform thereto.
3d, That the crime of forgery is committed by the use of a false
I Christian name, if that be used with the intention to mislead.
L
154 CASES BEFORE THE HIGH COURT
No. 18. Alexander James Petty Menzies, was charged with
J. p. Falsehood, Fraud, and Wilful Imposition ; as also, with
-;-!^!l!l- Forgery ; and al^, with Uttering Forged Writings :
1848.' ^^ SO FAR AS (1.) On several occasions between the 23d day of July
■p and 3d day of September 1848, the particular day or days being to
&c. the prosecutor unknown, and within or near the shop or premises in
West Eegister Street of Edinburgh, then and now or lately occupied
by George Vallance, breeches-maker and glover there, you the said
Alexander James Petty Menzies did, wickedly, falsely, fraudulently,
and feloniously, represent and pretend to the said George Vallance,
and to Walter Vallance and George Vallance junior, sons of, and then
and now or lately residing with, the said George Vallance, or to one
or more of them, that you were Mr Lockhart Menzies, a member or
relative of the family of Menzies of Castle-Menzies, in Perthshire, and
an officer of the Third Light Dragoons, and you did by these and the
like false representations and pretences, wilfully and wickedly impose
upon the said George Vallance, Walter Vallance, and George Val-
lance junior, or one or more of them, and did thereby prevail upon and
induce the said George Vallance to advance on credit to you from
time to time, during the period above libelled, clothes and other fur-
nishings to the amount of £27, 19s. 6d., sterling, or thereby, which
you did not pay or account for to the said George Vallance, but ap-
propriated to your own uses and purposes, whereby the said George
Vallance was defrauded and wilfully imposed upon by you the said
Alexander James Petty Menzies : Likeas (2.), on several occasions
between the 23d day of August and 14th day of September 1848, the
particular days being to the prosecutor unknown, and within or near
the shop or premises in or near George Street, Edinburgh, then and
now or lately occupied by the Company or firm of Meyer and Morti-
mer, then and now or lately army and navy contractors and clothiers
there, you the said Alexander James Petty Menzies did, wickedly,
falsely, fraudulently, and feloniously, represent and pretend to John
Mortimer, then and now or lately a partner of the said company or
firm, and then and now or lately residing in or near George Street
aforesaid, and to Donald Munro, then and now or lately clerk to the
said company or firm, and then and now or lately residing in or near
Castle Street, Edinburgh, or to one or other of them, that your name
was Lockhart, and that you were a lieutenant or other officer in the
Seventy-Eight Regiment, and did thereby prevail upon and induce the
said John Mortimer and Donald Monro, or one or other of them, or
other person or persons acting for the said company or firm, to advance
on credit to you, from time to time, during the period last above li-
belled, clothes and other furnishings, and lent cash, to the amount of
£9, lis. sterling, or thereby, which you did not pay or account for to
the said John Mortimer, or to any other person for behoof of the said
AND CIRCUIT COURTS OF JUSTICIARY. 155
company or firm, but appropriated to your owu uses and purposes, No. la,
whereby the said John Mortimer, and the said company or firm, were j_ p_
defrauded and wilfully imposed upon by you the said Alexander Menaies.
James Petty Menzies: Likeas (3.), on the 23d day of August 1848, High Court-
or on one or other of the days of that month, or of July immediately ■^^^'g*'
preceding, or of September immediately following, you the said Alex- '. —
ander James Petty Menzies having written or procured to be written, '""^S^t
a bill of exchange or other similar writing for £30 sterling, bearing to
be dated ' Edinburgh 23* August 1848,' and to be payable two months
after date, and to be drawn by Moritz Cohnert, and to be addressed,
' To Grenville A Lockhart Esq'., 78 Highlanders at Taits Hotel
' Edinburgh,' you the said Alexander James Petty Menzies did, time
last above libelled, and in or near the shop or premises in or near Leith
Street, in or near Edinburgh, then and now or lately occupied by
Moritz Cohnert, then and now or lately jeweller there, and then and
now or lately residing in or near St James' Square, in or near Edin-
burgh, or at some other place in or near Edinburgh, to the prosecutpr
unknown, wickedly and feloniously, forge and adhibit, or cause and
procure to be forged and adhibited, upon the said bill of exchange or
other similar writing, the subscription ' G. A. Lockhart L* 78* Reg^,'
as acceptor, intending the same to pass for and to be received as the
genuine subscription of Graeme Alexander Lockhart, then and now or
lately lieutenant in Her Majesty's 78th Begiment of Foot, then and
now or lately in India, or elsewhere to the prosecutor unknown, or of
some other person of the name of Lockhart to the prosecutor unkuowny
or the same being a fictitious subscription : Farther, time last above-
libelled, and within or near the shop or premises aforesaid, then and
now or lately occupied by the said Moritz Cohnert, you the said Alex-
ander James Petty Menzies did, wickedly and feloniously, use and
utter as genuine, the foresaid forged bill of exchange or other suailap
writing, having thereon the said forged subscription, yxm well knowit^
the same to be forged, by then and there delivering- the same as a
genuine bill to the said Moritz Cohnert, in paymen<t of the price of
various articles of jewellery, and in repayment of various advances of
cash to you by the said Moritz Cohnert : Likeas- (4.), on the 13th
day of September 1 848, or on one or other of the days of that m-anth,
or of August immediately preceding, or of October immediately fol-
lowing, you the said Alexander James Petty Menzies- having written,
or procured to be written, a bill of exchange or other similar writing,
for £4.9 sterling, bearing to be dated 'Edinburgh 13 Sep' 1848,'
and to be payable one mouth after date, and to be addressed, ' To
' Mess Cox & Co. Craig's Court Charing Cross London,' did, time
last above libelled, and in or near the hotel or premises- in or near
Princes Street, Edinburgh, then and now or lately occupied by James
Tait, then and now or lately hotel-keeper, residing these, wickedly
and feloniously, forge and adhibit, or and cause procure to be forged
&e.
156 CASES BEFORE THE HIGH COURT
No. 18. and adhibited, upon the said bill of exchange or other similar writing
Alexander j^gj. ^^^^^ libelled, the subscription ' Lockhart Menzies,' or other si-
Menzies. milar subscription, as drawer and indorser, intending the same to pass
High Court ^"' ^^^ *° ^® received as the genuine subscription of some person of
Feb. 5. the name of Lockhart Menzies to the prosecutor unknown, or the same
'*^' being a fictitious subscription : Farther, time last above libelled, and
Forgery, in or near the hotel or premises aforesaid, then and now or lately oc-
cupied by the said James Tait, you the said Alexander James Petty
Menzies did, wickedly and feloniously, use and utter as genuine the
forged bill of exchange or other similar writing last above libelled,
having thereon the said forged subscriptions, you well knowing the
same to be forged, by then and there delivering the same, or causing
or procuring the same to be then and there delivered to the said James
Tait, in payment of an account for board and lodging incurred by you
to the said James Tait.
The pannel was indicted under the name he gave to
the Sheriff when he emitted his declaration ; and the
Public Prosecutor did not adduce any other evidence
to show that his name was not Lockhart Menzies, as
subscribed by him on the bills.
The evidence of the first charge was as follows : —
Walter Vallance. — One of our shopmen was sent for on 24th
July, to measure a gentlemen at Tait's Hotel for trowsers. The pri-
soner came to the shop a few days after : he was then wearing the
trowsers made on account of this order. He said we might as well
take his address in the country, which was Lockhart Menzies, Esq.,
Rannoch Lodge, Perthshire. This was all that took place. He
ordered more clothes at that time. I often saw him after. Shortly
before the Agricultural Ball, he said he thought of going to the ball
in the uniform of his regiment. I said what regiment ? he said. Third
Light Dragoons. He did not get a uniform, but afterwards came and
ordered a dress suit. He ordered a coat of the uniform of a racing
club. The account shown, £27 : 19 : 6, is ours. During his dealings,
we believed him Mr Lockhart Menzies, and an officer of the Third.
We made furnishings in consequence. We knew Rannooh Lodge be-
longed to Sir Robert Menzies, and believed hira a relation. We be-
gan to suspect, because a brother tradesman said he had received the
name of Lockhart from him.
George Vallance corroborated the above, and deponed that the
prisoner in August said he was in the Third Light Dragoons, and it
would cost him £300 to exchange into a regiment at home.
MoNCREiFF. — :It was a point of law, calling for direc-
AND CIRCUIT COURTS OF JUSTICIARY. 157
tion by the Court, whether, when a person signed his No. i^s^^
own surname, but used a prefix which was not his own, J. p.
Af 6112168
that was forsrery. The question was not whether he —
1 • 1 , .1 1 111 HighCourt.
was christened by a particular name, but. whether he Feb. s.
committed the act with the intention of forgery. It was '—
not the case of a fictitious signature, but that "of assum- °&t^^'
ing a prefix which he thought better than his own. This
was often done most innocently ; and in order to estab-
lish the prisoner's guilt, the Jury must believe that it
was done by him in circumstances where, if he had
signed his own christian name, credit would not have been
given him. But farther, the prosecutor had failed to
show, except by the prisoner's declaration, which alone
was not proof, that the prisoner's name was riot Lockhart
Menzies.
The Lord Justice-Clerk, in summing up, said — It is
contended there is no proof that the prisoner is not
Lockhart Menzies. This is not the question in issue.
He is indicted under a particular name, and answers to
it. When examined, he says that is his name ; and it
is clear, if a person gives a name to the Sheriff as his
name, the prosecutor is entitled to indict him under
that name. If the defence is, that that is not his name,
it was his business to have proved it, supposing that it
could have availed him.
The next observation I have to make to you is, that the
most successful means of making a false representation, is
not to volunteer such a statement as " I am Mr Lockhart
Menzies, a relation of Sir Robert, and an officer in the
Third Light Dragoons." It is by the way and manner
in which circumstances are conveyed to the mind, incor-
rect in themselves, but which the party knows will have
weight with the persons interested. It is sufficient,
therefore, that the representation is conveyed to the
mind in an indirect manner, by conduct calculated to
leave the impression that the person is what he holds
himself out to be. No doubt, it must be proved that
some person was thereby imposed upon and trusted oii
158 CASES BEFORE THE HIGH COUKT
No. 18. that account. In this case, though the witnesses were
J. p. not directly asked whether they trusted in consequence
- of this representation, you will consider if this may be
Feb. sT*" sufficiently inferred, as, except the first two items in the
^"^^' account of Vallance, all the particulars of the account are
Fo^ery,, incuj-j-eij after the 3d August when the statements were
made. That is the evidence on the first charge, and you
who understand business, will say whether the represen-
tation was intended to mislead the tradesman. It is not
necessary that the account should be commenced, if it is
continued on the credit that the prisoner is Mr Lockhart
Menzies, and an officer of Third Light Dragoons.
In regard to the question of forgery, I must tell you,
it is not a question about the credit given in the hotel.
It is a question about forging a name to a bill, and
uttering the same as genuine. The charge is of forging
a name that he knows to be fictitious. It is said, that
in signing Lockhart Menzies, whether he took a wrong
Christian name or not, he signed his own surname, and
this is not a fictitious signature, and so the crime of for-
gery is not made out. But this bill is written and ad-
dressed by him ; he giving as the place of payment the
office of Cox & Co. He signed Lockhart Menzies, and
if you believe that the object of that was to convey to
Tait and his clerk the impression that he was Mr Lock-
hart Menzies, who had funds at Cox's, that is the crime
of forgery. For forgery and uttering are completed by
subscribing a name of a person supposed to have money
at a banker's, and uttering it as such. Therefore, in
point of law, if you are satisfied that the name subscribed
to the bill was intended to be that of another person
than himself, and who was supposed to have money at
Cox's, then the crime of forgery is complete.
The Jury unanimously found the pannel guilty as
libelled.
In respect of which verdict of assize, he was sentenced
to be transported for seven years.
AND CIKCUIT COVETS OF JUSTICIARY. 159
Present,
The Lord Justice-Clerk,
Lords Moncreiff, Medwyn, Cockbubn, and Wood. 1B49.
John Meekison and Tutor, Suspenders — Deaa.
AGAINST
Donald Mackay, Respondent — Neaves.
("Sequel of Case reported, ArHey, p. 503.
Police Court — Suspension. — Circumstances in which it was held to
be incompetent to try children, of the ages of ten and twelve, in the
Police Court, in the absence of their parents, whose residences were
well known.
This case came to be disposed of on the commissioner's no is
report of the proof. ,S°or
Deas, for the suspenders, contended, — 1. That it was '°- Mackay.
established by the proof, that the parents of the child ^^^jj,*^""'"
were excluded at the time the original complaint was i8*»-
heard. 2. That, whether that was established or not, it suspension,
was incompetent to proceed to convict a child at the age
of ten years of such an offence, summarily, and in the
absence of his parents, whose residence was well known
to the police.
Lord Medwyn. — This is a very painful case. The
question for us to determine is, whether the complainer's
parents were excluded from the police office at the time
he was convicted. If this had been done, no doubt it
would have been enough to justify a suspension. I, how-
ever, do not think it was. It was the duty of his parents
to be present at the first hour when the magistrates sat,
and to continue in attendance until the case was brought
on. It is not shewn that there was any irregularity in the
way of bringing on the case, and I cannot say that there-
was any duty on the part of the police, either to advise
her to remain until the case was called^ or to give her^
160 CASES BEFORE THE HIGH COURT
No. 19. any particular introduction into the office when she came
and Tutor back with her witness. On the whole, I cannot think
D. Mackay. , . , i i i
— ; she was improperly excluded.
rib. is."^' Lord Cockburn. — The proof, no doubt, is insufficient
^"^^' to establish an exclusion of the complainer's parent. So
Suspension. ^^^ ^^^ grouuds of suspeusion are not only not proved,
but disproved. But it is my duty to say, that this is
not a case which ought to have been sent to the Police
Court. Suppose, for argument, that the hour at which
what is styled the offence was committed, was half-past
three, during public worship, what does that matter ?
Here are two children, or creatures, only about ten years
old, found playing at marbles, and rejoicing at the skill
they shewed in shooting into a hole. They are taken
hold of by the police, and although he knew the parents,
instead of seeking them, he takes the children and locks
them up till next morning, amongst the worst vagabonds
of the town. I feel it incumbent upon me as a judge
to say, that I protest against such a proceeding. It was
an abuse to take and lock up two such children when
their parents were well known. It was an outrage on
all proper feeling, and especially on all those feelings on
which it professed to proceed, in reference to the due
observance of the Sabbath. The crime committed by
the officers was infinitely greater than the one imputed
to the infants ; and I hope never again to see Sunday
protected by such unchristian proceedings. On these
grounds, I am for sustaining the suspension.
Lord Wood. — The proof establishes that the com-
plainer's mother was not refused admittance to the office ;
but I concur with Lord Cockburn, on the general point
of the impropriety of the whole proceedings. No doubt,
cases might be supposed where the interference of the
police was absolutely necessary, even against children of
their age ; but, in my opinion, it was exceedingly impro-
per to take these children to the police office for such an
offence, lock them up the whole of Sunday evening, and
try theni on the following morning, in the absence of
AND CIRCUIT COURTS OF JUSTICIARY. 161
their parents, whose residence' was well known. I en- no. is.
tirely disapprove oi such a mode of proceeding, and all ^a Tutor
that followed thereon. "• ^^"W-
The Lord Justige-Clerk.— I think the proof estab- ^F^b!^i'^'-
lishes that the mother applied for access and was re- 1^49.
fused. I think this established by the real and posi- Suspension,
tive testimony in the case. I also agree in quashing the
sentence, as an illegal and oppressive proceeding, on the
grounds stated by Lords Cockburn and Wood. I con-
sider it extremely wrong on the part of the police to
have proceeded to try and convict these children in the
absence of their parents. These Inferior Courts must be
restrained when they proceed to punish such young chil-
dren, in such a way. It is right to make it known
that we shall quash all convictions so obtained. I sus-
tain the complaint, on the ground of the express terms in
which it was prepared ; but no conviction ought ever to
have followed on the evidence which was adduced, and
no magistrate ought ever to have encouraged any police-
man to prefer such a complaint.
Lord Medwyn. — I also concur in condemning the
proceedings. The police, knowing the parents of the
children, ought to have gone to them, and not have
taken the children to the office, or tried them at all.
The Court passed the note of suspension.
WoTHBRSPooM & Mack, S.S.C. — Lockhabt, Huntek & Whitehead, Agents.
John Lockie, Suspender — Deas.
AGAINST
John M'Whirteb, Kespondent — Neaves — Aytoun.
Statute. — Held, that under the 203d seetiou of the Glasgow Police
Act, that it was necessary to libel that the coals had been sold and
delivered within the limits of the act, and a sentence proceeding on
an alternative libel suspended.
162
CASES BEFORE THE HIGH COURT
No. 20. This was a certified Appeal from the Circuit Court at
M'Whirter. Glasgow. It arose under the following circumstances : —
HighCourt. By the Glasgow Police Act,^ the Commissioners of Police
Feb. IS. "^ °
1849.
Suspension.
1 By the Act 6th & 7th Vict. c. 99, § 203, it is enacted, ' That
it shall not be lawful to any person to sell or dispose of coals -within
the limits of this act, except by weight ; and the said Board of Com-
missioners shall be, and they are hereby empowered and authorized
to erect, so far as not already done, and to maintain steel-yards,
scales, or other weighing-machines, upon, or adjacent to the different
roads or streets, within, or leading to the said limits, or at any other
convenient place, for the purposes hereinafter mentioned, or to grant
powers to others to that effect, and to appoint proper persons to at-
tend the same, with suitable allowances for their trouble ; and to
order and appoint every cart or waggon employed for the carriage
of coals for sale within the said limits, to be numbered and weighed,
and recorded in a book to be kept for that purpose within the said
limits, under the direction of the said Board of Commissioners, and
the number and tare to be painted or inscribed on a conspicuous part
of such cart or waggon, and in such manner as the said Board shall
direct ; and no cart or waggon shall be used in the carriage of coals
for sale, until the weight or tare of such cart or waggon shall be as-
certained, recorded, and inscribed as aforesaid ; nor be afterwards
altered in the weight or tare thereof, further than may be occasioned
by wet roads, under a penalty not exceeding twenty shillings ; and
every such cart or waggon loaded with coals for sale or delivery,
(except for shipment at the Broomielaw) within the said limits shall
be weighed at the said steel-yards, or weighing-machines, and the
weight of the coals, and of the cart or waggon, and also the time of
such weighing, shall be marked on a ticket to be delivered to the
driver ; and the person having the charge of such steel-yards, or
weighing-machines, shall exact from the driver the sums following,
viz., for each cart not exceeding twelve hundred weight, one penny :
for each cart and a half, not exceeding eighteen hundred weight, three
halfpence ; and for each waggon, not exceeding twenty-four hundred
weight, twopence, for weighing the coals, and delivering tickets as
aforesaid, and for erecting and keeping in repair the said steel-yards
and weighing-machines ; which sums shall be repaid to the drivers
by the purchasers of the coals, or persons to whom the same are de-
livered, on the ticket thereof being produced ; and the property of
such steel-yards or weighing-machines, shall be, and is hereby vested
in the said Board of Commissioners : And if any carter or other
person shall bring, within the limits of this Act any cart or waggon
with coals, exceeding five hundred pounds weight, and shall sell or
deliver, or attempt to sell such coals, without first having the same
AND CIRCUIT COURTS OF JUSTICIARY. 163
are authorized to erect and maintain steel-yards for the No. 20.
weighing of coals, and every person attempting to sell or M'Wuirte'r.
deliver, within the limits of the act, coals in quantities High Court.
Feb. IS.
— _— . 1849.
' weighed, and a ticket procured as aforesaid, such carts or waggons Suspension.
' may be seized, and the coals therein may be declared forfeited, and
' the proceeds applied in the same manner as the penalties under this
' Act, but the carts or waggons shall be returned to the owner or
' driver ; and if such coals shall have been sold and delivered, without
' having been weighed, and a ticket procured as aforesaid, such driver
' may be subjected in a penalty not exceeding forty shillings, besides
' having the coals confiscated ; and it shall be lawful to the Superiu-
' tendent and officers of police to seize any cart or waggon with coals,
' which have not been weighed, and a ticket procured, as aforesaid,
' and to detain the same until the penalty and the expenses attending
' the proceedings shall be paid.' (§ 204), ' That it shall be lawful to
' the said Board of Commissioners, to provide, furnish, and maintain,
' such a number of portable or moveable machines for weighing coals
' as they may deem necessary, to be kept in convenient places within
' the said limits, in order that the inhabitants may have access to them
' for the purpose of reweighing their coals, at their own expense, if
' they shall be so inclined ; and to employ proper persons to attend
' such machines, and to establish the rates to be payable for such re-
' weighing ; and it shall be lawful to the Superintendent of police, or
' Inspector of weighing-machines, or any other officer, to cause coals
' oflfered for sale, or for delivery, to be reweighed, and to require the
' carter to produce the ticket thereof, as a check on the conduct of
' carters and others — such reweighing being always done free of ex-
' pense.' (§ 279), ' That no order, judgment, record of conviction, or
' other proceeding whatsoever, concerning any prosecution by virtue
' of this Act, or of any Act herein recited, shall be quashed or vacated
' for any misnomer or informality ; and that all judgments and sen-
' tences pronounced by the said Magistrates, or any of them, under
' this Act, shall be final and conclusive, unless appealed from in man-
' ner hereinafter provided.' (§ 280), ' That if any person shall feel
' aggrieved by any sentence pronounced by the Magistrates, under
' this Act, it shall be lawful for such person to appeal to the Court of
' Justiciary, at the next Circuit Court to be held at Glasgow, or else-
' where, for the Western Circuit, in the manner and under the rules,
' limitations, and conditions contained in an Act passed in the twen-
' tieth year of the reign of His Majesty King George the Second, in-
' tituled, ' An Act for taking away and abolishing Heritable Juris-
" dictions in Scotland ;' and it shall not be competent to appeal from,
' or to bring the judgment of the Magistrates under this Act, under
' review, by advocation, suspension, suspension and liberation, or re-
164 CASES BEFORE THE HIGH COURT
No. 20. exceeding 5 cwt., is required to have them weighed at a
M'wwrte'r. steel-jard, and to pay twopence for the ticket which is
High Court, given him of the weight.
^\si9^' '^^^ suspender was a person regularly employed to
Suspension. ^^^<i^ coals (which had been previously bought) from the
coal-hill, by one of the manufacturers of Glasgow, within
the limits of the act. The Commissioners insisted that
as the place to which the coals were brought was within
the limits, they must be weighed and paid for at two-
pence per load. The suspender having refused to com-
ply with their requirements, the following complaint
was presented against him by the respondent : —
Police Court, Glasgow, Central District, 1st Fehruary 1848.
' Unto the Honourable the Magistrates of Glasgow, the com-
' plaint of John M'Whirter, Interim Procurator-Fiscal of
' Court, for the public interest,
' Charges John Lockie, carter, Parkhead, near Glasgow, with hav-
' ing contravened the 201st section of the Act entituled, ' The Glas-
" gow Police and Statute Labour Act,' 6th and 7th Vict. c. 99 : In
' so far as, on Saturday the 22d January last, the said John Lockie
' did briug within the limits of the said act four carts or waggons
' with coals — the coals in each of the said carts or waggons exceeding
' 500 pounds weight, and did on the said date, in or near Lancefield
' Street, Anderston of Glasgow, and within the said limits, sell or
' deliver 'the said coals to Messrs Fulton and Neilson, founders,
' &c., in said Street, without having first had the same weighed at
' one or other of the public weighing-machines provided for the pur-
' pose, and without having procured a ticket with the weight of the
' coals, and of the carts or waggons, and also the time of such weighing
' marked thereon, as required by the foresaid section of the said act ; for
' which contravention, tlie defender, on being legally convicted, ought
' duction, or in any way whatever, other than is hereby provided for,
' saving always any right of appeal, or other mode of review autho-
' rized by any other Act, under which it is by this Act made lawful
' for the said Magistrates, or any of them, to try crimes or offences :
' Provided always. That no such appeal shall operate as a stay of
' execution in cases where the sentence or decree awards imprison-
' ment, unless on sniEcient caution for the appearance of the party, in
' such manner as the Judge shall direct, and that without prejudice in
' either case to the caution or security required by the said recited
' Act.'
AND CIRCUIT COURTS OF JUSTICIARY. 165
' to be punished in terras of law, to deter others from committing the jj^^ 20.
' like contraventions in time coming. Lockie «.
' John M'Whirter.' M-Whirter.
High Com-t.
Feb. 15.
When this complaint was heard, the following sen- i^^^-
tence was pronounced : —
' The Bailies find unanimously, from the admission of the defender,
' and the proof adduced, that the defender has contravened the 201st
' section of the Statute, and is liable in the penalty thereby imposed ;
' modify the same to ten shillings, and decern.
(Signed) ' Robt. Stewart.
' Robert Smith.
' David Smith.
' John Gilmour.'
Lockie appealed to the Circuit Court ; when it was
objected that the act having dispensed with any record
in the inferior Court, it was impossible to ascertain
whether the conviction was rightful or otherwise ; inas-
much as that must be determined, not by the evidence
which might competently be adduced, but by what was
adduced when the case was heard.
Lord Mackenzie certified the case, which was now
heard.
Deas, for suspender, contended, that as the terms of
the. statute only rendered it imperative on the carters to
have the coals weighed when the sale or delivery was
within Glasgow, it had no application to the suspender's
case, who was a special servant sent out to receive coals
which had been previously bought, and of which he re-
ceived delivery beyond the boundaries. The coals were his
employers, and so he told the bailies, but they miscon-
trued his statement of having been sent to bring coals
previously bought, into a confession of guilt. It was then
said the Court could not get at the facts, as no record
was kept. That would render review nugatory. Every-
thing necessary to give effect to review was included in
the right of appeal; Lord Moncreiff's opinion in
M'PhaiVs case, Nov. 20. 1837, Swinton, vol. i. p. 583.
166 CASES BEFORE THE HIGH COURT
No. 2i). In this case, the question was, had not the Magistrates
M'Whirter. fined iu a case where they had no jurisdiction; and where
High Court, no offence was committed, as both the sale and delivery
^1849.^" took place beyond the limits ?
Suspension Neaves, for respondent — The case was important. If
any person convicted could, under the 280th section, ap-
peal on the merits, and have an enquiry into what took
place at the trial, it was difficult to understand why a
record of the evidence was dispensed with by the statute.
The legislature, by dispensing with all record of evidence,
practically excluded review on the merits. There was no
means whereby it could be effected, as the enquiry must
be limited to what took place at the original hearing.
No doubt insulated facts, such as improper admission or
rejection of a witness might be enquired into, but no
case had said that all the merits could be gone into
again. The only effect of the appeal given by the
statute was to put the Court of appeal in the same posi-
tion as the Bailies, and not to enable them to lead a
fresh proof
The Lord Justice-Clerk. — Do you contend we can-
not enquire into the evidence, when an allegation is
made that, on the merits, the inferior Court had no juris-
diction ?
Neaves. — I contend that all carters are subject to the
tax, and that having been convicted in part on his own
confession, the Court cannot enquire into the terms in
which the confession was made.
Deas, in reply — The words of the complaint are dif-
ferent from the clause of the statute on which it pro-
ceeds. The words applicable to completed transactions
are, ' if such coals shall have been sold and delivered ;'
whilst the complaint on which the conviction proceeded
is, that the suspender did ' sell or deliver the coals.'
That is an alternative not warranted by the statute.
Lord Moncreiff. — That is enough, the prosecutor
was not entitled to insert in his complaint an alternative
not contained in the statute.
AND CIRCUIT COURTS OF JUSTICIARY. 167
The Lord Justice-Clerk. — I concur ; that objection is No. 20.
insuperable. At the same time, I think with Lord M'Whirter.
Mackenzie, that the statute having given a power of ap- High Court,
peal, has by implication given everything which is neces- fsis. '
sary to enable the Appeal Court to explicate its juris- suspension.
diction. It does not follow that we are confined to any
particular mode of making the enquiry. We might re-
mit to the Magistrates to pronounce a special inter-
locutor, on which we could afterwards proceed. In the
present instance, I think we should pronounce an inter-
locutor, which will indicate our opinion that the re-
spondent cannot prosecute, except where the sale and
delivery are both within the limits, and to this I think
the suspender entitled.
The following interlocutor was pronounced : —
' Find that the complaint is not laid in conformity
* with the statute, inasmuch as it states that the appel-
' lant did contravene the statute, in so far as he did sell
' or deliver coals within the limits of the city of Glas-
' gow, and is liable to the statutory penalty in respect
* thereof, while the penalty is imposed only in the case
* of coals being sold and delivered within the said limits ;
' therefore sustains the appeal.'
John Leishman, W.S. — Charles Fishee, S.S.C. — Agents.
1 68 CASES BEFORE THE HIGH COURT
Present,
Feb. 17. The Lord Justicb-Genebai,,
1848.
Lord Justice- Clerk,
Lords Mackenzie, Moncreifp, Medwyn, Cockburn, and Wood.
William Graham, Suspender — The Lord Advocate (^Butherfurd) — ■
Moncreiff- — Inglis.
Richard John Moxey, Eespondent — Dean of Faculty {M'Neill) —
Neaves.
Statute— ;-SusPENSiON. — Circumstances in which it was held, that the
decision of the Police Magistrate was final, and that suspension of
his decree was incompetent.
No. 21. This was a suspension of a sentence pronounced in
'^Mox^"' *^® ^oWae Court of Edinburgh on the 19th of January
Hi h Court ^^^^' proceeding on the following complaint.
Feb. 17.
^ ' Unto the Honourable the Magistrates of Edinburgh, or any
Suspension. . ^f ^^^^^ officiating as Judge in the Police Court, Edin-
' burgh, — The Complaint of Richard John Moxey, Superin-
' tendent of Police, and Procurator-fiscal of Court for the
' Public Interest.
' Humbly Sheweih — ^That William Graham, now or lately residing
' in High Street, in or near Edinburgh, who is licensed to sell ale,
' beer, or exciseable liquors, did, in contravention of the Edinburgh
' Police Act, 1848,^ upon the 13th day of January 1849 years, or
1 This statute enacts by § 84, ' Whereas it is expedient that in cases
arising under this Act the proceedings shall be attended with as little
expense and delay as possible, be it enacted, That all actions, pro-
secutions, and proceedings before the said Police Court, shall com-
mence by a complaint, written or printed, or partly written and
partly printed, at the instance of one or other of the said Procura-
AND CIRCUIT COURTS OP JUSTICIARY. 169
about that time, after the hour of eleven o'clock at night, within the No. 21.
premises occupied by the said accused, situated in High Street, in Jiox^"'
or near Edinburgh, the same as then used and occupied by him, beinjr „. . „
. . , ,, , , . •, , ^ , ■ ■, ■ High Court,
a spirit shop, cellar, yault, or other similar place, suffer drinking or Feb. 17.
tippling. '»*9-
Suspension.
tors-fiscal, or at the instance of persons duly authorized to act for
them, in which latter case such proceedings, though subscribed by
any such persons, shall be commenced and conducted throughout in
name of the said Procurators-fiscal respectively ; and (with the ex-
ception of complaints against Chain-droppers, Thimblers, loaded Dice-
players, and ofienders of that description) such complaint, in all
cases of theft, or of reset of theft, or of falsehood, fraud, and wilful
imposition, or of breach of trust and embezzlement, and the convic-
tion following thereon shall bear that the sum of money or the value
of the article stolen, resetted, obtained by falsehood, fraud, and wilful
imposition, or embezzled, does not exceed ten pounds ; and it shall
not be competent thereafter to the person accused, (except where an
oflTer shall be made at the time,) to prove that the money or article
stolen, resetted, obtained, or embezzled exceeded in value the sum
of ten pounds ; and the whole other procedure in the said Court shall
be conducted summarily viva voce, and without written pleadings ;
and no other record shall be kept of the proceedings of the said
Court except the complaint and the judgment pronounced thereon ;
and it shall not he competent to any party who shall appear at the
bar of the said Police Court to answer to any complaint, to plead
want of due citation or informality in the warrant or execution.'
(§ 86), ' That if it shall appear either in the preliminary investigation
of the charges against any person accused of having committed any
crime, delinquency, or offence within the limits of this Act, or
during his trial in the said Police Court, that such person has been
guilty of, or is charged with any of the crimes denominated the pleas
of the Crown ; (videlicet,') murder, robbery, rape, and wilful fire-
raising, or with the crimes of stouthrief, or of theft by housebreaking,
or of housebreaking with intent to steal, or of simple theft to an
amount exceeding ten pounds, or of theft by opening lockfast places,
or of theft aggravated by being habit and repute a common thief, or by
having been twice previously convicted of theft, or of reset of theft to
an amount exceeding ten pounds, or of reset of theft aggravated by
having been twice previously convicted of that crime, or of falsehood^
fraud, and wilful imposition to an amount exceeding ten pounds, or
of falsehood, fraud, and wilful imposition, aggravated by having been
twice previously convicted of that crime, or of breach of trust and
embezzlement to an amount exceeding ten pounds, or of breach of
trust and embezzlement, aggravated by having been twice previously
convicted of that crime, or of assault to the danger of life, or of
M
170 CASES BEFORE THE HIGH COURT
No. 21. ' -And the said accused has been previously convicted of the above
Graham «. ' offence, conform to sentence of this Court, dated the 22d day of
°^^' ' December 1848.
^F b^lT^*' ' ^' ^®' *'l'6i'sfo''S) craved that warrant be granted for summoning
184.'). ' the said accused to answer to this complaint, and for citing witnesses
Suspension. ' ^ ~ '
' asault whereby any limb has been fractured, or of assault with any
' knife or other lethal instrument, where effusion of blood has followed,
' or of assault aggravated by two previous convictions for that crime,
' or of assault with intent to ravish, or of attempt at wilful fire-raising,
' or of culpable homicide, or of forgery, or of uttering forged bank or
' bankers' notes, it shall not be competent for the Procurator-fiscal, or
' those acting under or for him, to insist in a prosecntion against such
' person in the said Police Court, but the Judge shall commit the per-
' son accused to the Prison of Edinburgh for examination ; and the
' Procurator-fiscal shall forthwith give notice of such commitment to
' the Procurator-fiscal of the county of Edinburgh, or, in the event of
' the offence charged having been committed within the city of Edin-
' burgh, or liberties of the same, to the Procurator-fiscal of the said
' city, in order that such person may be proceeded against conformably
' to lave : Provided always, that the aforesaid provision shall not
' apply to chain-droppers, thimblers, loaded dice-players, and offenders
' of that description, whom the Judge is hereby specially empowered
' to try and sentence, whatever may be the amount of the sum
' specified in the charge against them, or however often they may
' have been previously convicted.' (§ 107), ' That no order, judgment,
' record of conviction, or other proceeding whatsoever, concerning any
' prosecution instituted in the said Police Court, by virtue of this Ant,
* shall be quashed or vacated for any misnomer or informality ; and
' all judgments and sentences pronounced by the Judge shall be final
' and conclusive, and not subject to suspension, or advocation, or ap-
' peal, or any other form of review, or stay of execution, unless on the
' ground of corruption, malice, or oppression on the part of the Judge,
' or of such deviations in point of form from the statutory enactments
' as the Court of Review shall think took place wilfully, or of incom-
' peteney, including defect of jurisdiction of the Judge, and which
' suspension, or advocation, or appeal, or review, or stay of execution,
' must be presented to the High Court of Justiciary within fourteen
' days after the date of the sentence complained of.' (§ 135), ' That
' if any person who is licensed to sell ale, beer, or exciseable liquors,
' shall, within any shop, house, office, or other premises occupied by
' him suffer riotous or disorderly conduct ; or shall harbour thieves,
' prostitutes, or disorderly persons, or shall suffer men or women of
' notoriously bad fame, or dissolute boys or girls, to meet or assemble
' therein ; or shall permit or suffer any unlawful games therein, where-
' by the lieges may be cozened and cheated ; or shall, within the shop
AND CIRCUIT COURTS OP JUSTICIARY. 171
for both parties; and that {he said accused Be thereafter punished No. 21.
according to law, or that such other judgment he given as the case ^J?*'^'" *•
may require. — — -
' According to Justice,' ^^eb^t^'
(Signed) ' E. J. Moxby, Superintendent.' 1849.
' Edinburgh, \&th January 1849.* SuspenSiou.
house, office, or other premises occupied by him, suffer any drinking
or tippling at any hour earlier than one o'clock in the afternoon or
during the hours of divine service on Sabbath days, or on other days
set apart for public worship by lawful authority, (except in inns and
hotels licensed, and at railway refreshment rooms licensed and open
for the accommodation of passengers only,) such person, on being con-
victed of any of the above offences, shall be liable to a> penalty not
exceeding five pounds; and the Judge may further ordain sucii per-
son to find security for good behaviour for such length of time, not
exceeding twelve months, and to such extent, not being less than ten
pounds, and not exceeding fifty pounds, as he shall sed meet ; and in
the event of such caution not being found within a reasonable time,
to be specified in the order, it shall be lawful to the Judge to deprive
such person of his licence ; and if any such person shall be convicted
more than once of any of the said offences, the Judge shall in like
manner, either award the said fine, and order renewed security, or
deprive such person of his licence, as he may judge proper : saving
and reserving the rights of all persons to enforce the due observance,
and to prevent the profanation of the Sabbath day, otherwise, ac-
cording to the laws and practice of Scotland.' (§ 136), ' That if any
person licensed as aforeswd shall suffer drinking or tippling within
the premises occupied by him, or sell ale, beer, or exciseable liquors
on anj' day after eleven o'clock at night, or before six o'clock in the
morning, or on Sabbath days or on any other day set apart for
public worship by lawful authority, at any hour earlier than one
o'clock in the afternoon, or during the hours of divine service, in the
case of a spirit shop, cellar, vault, or other similar place, such person,
on being convicted thereof before the Judge, shall for each offence
be liable to a penalty not exceeding five pounds, and may besides,
in the case of a second or other subsequent conviction, be deprived
of his licence : Provided always, that nothing contained in this
enactment shall apply to railway refreshment-rooms licensed and
open for the accommodation of passengers only.' (§ 137), ' That if
any person licensed as aforesaid shall supply any sort of exciseable
liquors to any boy or girl apparently under fourteen years of age, to
be consumed by such boy or girl within his shop or cellar, or any
other premises occupied by him, such person shall be liable, on being
convicted of a first offence, to a penalty not exceeding twenty
shillings ', upon conviction of a second offence, to a penalty not ex-
172 CASES BEFORE THE HIGH COURT
Graham't ^'^ advising this complaint the presiding Magistrate
Moxey. pronouuced the following sentence : —
High Court.
Feb. 17. « Edinburgh, \Mh January 1849. — The Judge finds this complaint
" ' proved against the accused by evidence adduced, aud finds said ac-
Suspension. t cused guilty accordingly ; therefore fines and amerciates said accused
' in the sum of £5 sterling, payable to the Clerk of Court ; sentences
' and adjudges said accused to be incarcerated in the prison of Edin-
' burgh, therein to be detained until said fine be paid, but not exceed-
' ing twenty days from this date ; and grants warrant to officers of
' Police to incarcerate the said accused in said prison, therein to be
' detained accordingly.'
(Signed) ' J. H. Stott.'
Graham suspended, and, along with the note of sus-
pension, produced, as an appendix, the grounds of deci-
sion as read from the bench at the time of pronouncing
sentence, which are here printed, as fully explaining the
case.
' The accused in this case is charged with having, in contraven-
' tion of the Edinburgh Police Act, 1848, upon the I3th January cur-
' ceeding forty shillings ; and upon conviction of a third or other sub-
' sequent ofience, to a penalty not exceeding five pounds, besides de-
' privation of his licence.' (§ 138), ' That if any person licensed as
' aforesaid shall, within the premises occupied by hira, knowingly
' harbour, entertain, or suffer to remain therein, any ofiicer, constable,
' or other person belonging to the said police force during any part of
' the time appointed for his being on duty (unless such officer, con-
' stable, or other person shall be there for the purpose of quelling dis-
' turbance, or otherwise in the discharge of his duty,) or if any person
' shall supply any such officer, constable, or other person with liquor
' when upon his station, or in any shop, cellar, house, or other place,
' during his time of duty, such person so offending shall for each such
' offence be liable to a penalty not exceeding five pounds.' (§ 162),
' Whereas encouragement is given to dissolute persons to remain in
' and loiter about the streets at late and unseasonable hours, by
' keepers of shops, in which dressed provisions are sold, keeping or
' having the same open at late hours in the night, and early hours in
' the morning J be it enacted. That no keeper of any such shop shall
' open, or iave open,'his shop at an earlier hour than five o'clock in
' the morning, or a later hour than twelve o'clock at night, and if any
' person shall offend herein, he shall, upon conviction before the Judge,
' for every such offence be liable to a penalty not exceeding forty
' shillings.'
AND CIRCUIT COURTS OF JUSTICIARY. 173
' rent, after the hour of eleven at night, within the premises occupied No. 2).
' by hiin, situated in High Street, the same as then used and occupied ^^^'^ "•
■ by him, being a spirit shop, cellar, vault, or other similar place, suf — ; —
■ fered drinking or tippling. He is further charged with the aggra- p^j, j^^
■ vation of a previous conviction for the same offence. 1849.
' It has been proved, that the house for which Graham obtained his Suspension.
' license is the third fiat from the ground, consists of six apartments,
• and contains three beds, two of which are occupied by the tenant
■ and his family, the third being kept for the use of any person who
■ may apply, such as commercial men, who sometimes frequent the
• house. In addition to the third (the licensed) flat, Mr Graham oc-
' cupies a lower storey, which, though belonging to a different pro-
■ prietor, communicates with the former by a door connecting the
■ two, and contains two apartments, — namely, a double-bedded room
• and a sinarle one, with a laundry, all passing through each other,
■ which are used by visitors. On Saturday last, there were seventy-
■ four persons in the licensed house, engaged in drinking or tippling,
■ after the hour of eleven at night, of whom three were in the act of
' being supplied with viands, the remaining seventy-one being en-
' gaged in drinking or tippling only. They were distributed through
' the house, there being thirty-one in one apartment, twenty-Jive in
' another, seven in a third, eight in a fourth, and the three engaged in
' eating, were appropriately enough found seated in the kitchen.
' They were proved to have been a mixed company, and had not met
■ for any common object, except that in which they were engaged for
■ the moment. The aggravation of the offence charged was admitted.
' On the part of the accused, it has been proved that the house
' bears the name of ' Graham's Anchor Hotel,' — a name, however,
' which is only of recent origin — that it is respectably conducted on
the same principle as an ordinary tavern or hotel — that dinners and
suppers are occasionally supplied, and that on the day in question,
a party of individuals, consisting of from sixteen to eighteen, whom
the witness adduced designated as a supper-party, had assembled in
the house about half-past five, and left about half-past eight ; al-
though a few might have been there and mingled with those who
were found after eleven.
' It was contended on the part of Mr Graham, that his house being
neither ' a spirit shop, cellar, vault, or any other similar place,' is
excluded from the operation of the statute, and that the Magistrates
had no right of jurisdiction.
' The duty imposed on the Magistrates, is to carry into effect the
objects intended by the Legislature, as these are expressed in the
statute. Now, the object expressed and intended by the 136th
clause of the Act, is to prevent tippling or drinking and the sale of
exciseable liquors in licensed houses after the hour of eleven at night
on week days, and earlier than one o'clock on Sabbath-days, &c,
174 CASES BEFORE THE HIGH COURT
No. 21. ' The clause at its outlet is quite general in its terms as to the places
^M^*""' ' where the offence may be committed, to. which its provisions are
-: '— ' intended to apply, the words being ' within the premises occupied
J^eb, 17. " " V bim;' namely, the party licensed. So general are its terms,
1849. ' that, in order to take from beyond its operation railway refreshment
Suspension. ' rooms, a special clause of exemption is inserted, shewing the gene-
' ral application of the clause, even to premises like these, had the}'
' not been specially selected for exemption.
' But it is contended, that the general teqns of the clause are quali-
' fied by the words, ' spij-it shop, cellar, vault, or other similar place,'
' which occur in a subsequent part of the enactment. It is argued,
' that these words must be construed literally, and that no house whose
' general description does not fall within the category enumerated,
' can be held subject to the provisions of the statute.
' It appears to the Magistrates, that a house or other premises are
' to he kuown and described by what is done within their precincts.
' The meaning of the word shop is, ' a place where anything is sold,'
' and a spirit shop is a place where spirits are sold. If the keeper of
' a licensed house, used in general, wholly or partially for any pur-
' pose, say for holding public meetings, shall, on any particular oc-
' casion, devote it to the sale of exciseable liquors, and suffer large
' numbers to assemble and engage in drinking, he brings himself
' within the provisions of the statute, and will not be excluded by
' the fact that generally his premises are not used for the purpose of
' tippling or drinking. By such an act, the keeper of the house
' changes its character, converts it into a spirit shop for the time, and
' brings himself within the provisions of the statute. The same re-
' mark applies to a house used generally as a lodging-house, a tavern,
' or a hotel, the general character of which may be changed by adapt-
' ing it to a special purpose, differing from that to which it is gene-
' rally applied.
' A case of this nature has already occurred. A house said to be
' used for the accomfliodation of travellers, and consisting of seven
' apartments, was found one evening after eleven o'clock to contain
' seventy-five persons, who were engaged in drinkjlng and tippling.
' Six out of the seven rooms were fitted up with beds, and were
' occasionally occupied by visitors at the house, where commercial
' travellers were in the habit of residing when in town. Of the
' seventy-five individuals, three slept in the house that evening, the
' remaining seventy-two having been there for the purpose of drink-
' ing, in which they were proved to have been engaged. In that case
' the presiding Magistrate, acting on the principle already mentioned,
' found that the house having been used as a spirit shop for the time,
' came under the provisions of the statute, and decided accordingly.
' In the case above referred to, the circumstances were rather more
' favourable to the accused than those which have been proved in the
AND CIRCDIT COURTS OF JUSTICIARY. l75
present case. Here the averment that the house is properly de- No. 21.
signated as a hotel, iu conformity with its recently assumed name, "^"*™ *•
has not been proved. But even although such proof had been
adduced, it would not have affected the principle on which the deci- ^|j_ j7_ '
sion proceeded, and which it appears to the Magistrates applies also 1849.
to the present case. It cannot be pretended that on the evening of Suspension.
Saturday the 13th, the parties found in Mr Graham's house used it
as a hotel. They used it as a spirit shop for the purpose of tippling
or drinking the exciseable liquors which he supplied, and in doing
which it appears to the Magistrates he used his premises as a spirit
shop in the sense intended by the statute, and for purposes which the
statute was passed in order to prevent.
' Although much weight cannot be attached to the words ' or
' other similar place,' following the descriptive portion of the clause
in the statute, still they cannot surely be held to have no meaning
at all. If the word spirit shop be a local phrase, importing a place
entering from the street (which has been contended foi-), these
general words may fairly be construed as conferring a latitude of in-
terpretation which otherwise the Magistrates would not have pos-
sessed. According to the view contended for, the prohibition is in-
tended to be limited to tippling or drinking within places on a level
with the street, in cellars and iu vaults. But it cannot be supposed
to have been the intention of the Legislature to prevent the sale of
exciseable liquors in the lower stories, and admit the same act to be
carried on without interruption in the attics of the same tenement.
Such a doctrine leads to a manifest absurdity, and is therefore un-
tenable.'
Plead edfor the Suspender — This suspension was brought
on the ground that the Judge in the Inferior Court had
exceeded the jurisdiction, given him by the statute. It
was not denied that the premises were in truth an hotel.
It was only said that the use of the premises on a parti-
cular occasion, made it a spirit shop. The first question
was, whether the Court had jurisdiction to review under
the statute. The 107th section, which precluded review,
except in certain cases, left it open to the Court to en-
quire whether the particular case brought before them
fell within the exceptions or not. Thus, for instance, it
might be enquired, whether the premises, in respect of
which the complaint was presented, were within the limits
of the police bounds. Again, it might be enquired
under the 86th section, whether the magistrates had
176 CASES BEFORE THE HIGH COURT
No. 21. convicted in respect of any oifence which was therein
Graham v. i t \ „ ,,..■,.. mt •
Moxey. Specially excluded from his jurisdiction. This was pre-
HighCourt. cisely analagous to the present case. It was not sought
1849. ' to have a review on the merits, as to whether tippling
Suspension, took place after eleven o'clock at night or not, but only
whether the premises were in fact a ' spirit shop, vault,
' or cellar, or other similar place.' The 135th section
dealt with all houses licensed in the same terms, except
in so far that in licensed inns and hotels, and railway re-
freshment rooms, no limitation was imposed in respect of
Sabbath days. The 136th section commenced, ' If any
' person licensed as aforesaid' (and under the licensing
act, hotels, taverns, and spirit shops, had precisely the
same license,) and could not be construed, so as to be in
opposition to the preceding section, to which it referred.
Yet this must be, if hotels which were excluded from
the 135th section, were to be held as included in the
136th, inasmuch as that would lead to inconsistent pro-
visions in respect of the Sabbath.
This went farther than the mere question of construc-
tion of a particular section, as it shewed that drinking
alone could not make any premises a spirit shop ;
otherwise, the supplying a bottle of wine, without food,
on Sabbath morning, Avould make the best hotel in
Edinburgh liable to the penalties of the act, notwith-
standing the express exception in the 135th section.
The first question for the Judge to have determined
was, whether the premises were of such a character that
he had jurisdiction to enquire to what use they were ap-
propriated, and unless he had such jurisdiction, the sen-
tence was a nullity, and ought to be set aside.
Pleaded for the Respondent — This suspension was in-
competent. Section 107 of the act excluded all review,
except for certain specified causes, none of which were
alleged here. The alleged want of jurisdiction was a fal-
lacy. It was of the essence of the offence whether the
suspender contravened the act, by the use to which he
appropriated his house. All that was said on the other
AND CIRCUIT COURTS OF JUSTICIARY. 177
side, merely amounted to a denial of the offence. It was No. 21.
admitted, that if the complaint had shewn a want of juris- Moxey.
diction ea; facie, then there would have been a power to HighComt
review. But that was not shewn here. The charge was \ud. '
before the proper judge, and he affirmed it. Had he been suspenaion.
of opinion that the premises were not a spirit shop, ought
he to have dismissed the case as incompetent, or to have
said not guilty ? clearly the latter. Yet, if he had juris-
diction to say not guilty, he had also power to say guilty
if he found the offence proved. This shewed that the
locus was part of the offence, and not a question of juris-
diction, as argued on the other side. The use to which
the premises were appropriated determined their cha-
racter, and that was for the Judge to determine.
The LoED Justice-Clerk. — Do you say that an hotel-
keeper would be liable under this section, if he supplied
a pint of wine to a casual visitor in his coffee-room after
eleven at night ?
That would be for the Judge to determine, and his
judgment was made final by the statute.
The Lord Justice- Clerk. — The question is one of
great importance, and the duty which the Court has to
discharge is, in my opinion, to ascertain whether the
Police Magistrate has exceeded the jurisdiction given
him by the statute. This, in my view, is not a review
on the merits — it is not an enquiry into the propriety of
the sentence, or the sufficiency of the evidence on which
it proceeded, but whether the magistrate had power to
enter on the enquiry. The distinction is clearly marked
in the 84th section, in regard to the value of articles
stolen. By that section, if the person accused offers at
the time to prove that the value of the articles which
form the subject of the charge exceed £10, he is entitled
to enter upon the proof, and so oust the magistrate's
jurisdiction. But suppose the magistrate to determine
erroneously that the value did not exceed £10, could he
thereby give himself jurisdiction, and exclude review on
178 CASES BEFORE THE HIGH COURT
No. 21. this matter. Yet all the difficulties which have been
Graham v. « . , .
Moxey. Suggested, as to no record and finality of judgment in
High Court, the present case would exist in the case supposed.
1849." I do not think those difficulties insurmountable either
Suspension. OH principle or authority. The inherent jurisdiction of
this Court, to confine inferior courts within their func-
tions— a jurisdiction which is not disputed, must be ca-
pable of explication. Accordingly, in several decided
cases where similar difficulties have existed, the Court
have sustained the competency of a suspension, and di-
rected enquiry into the facts. Thus, in the case of
Robertson, High Court, Dec, 24. 1842, (Broun, vol. i.
p. 468), we held it competent to make enquiry, and
made a special remit for the purpose of ascertaining the
facts. In the case oi Anderson, High Court, Feb. 15. 1836,
(Swinton, vol. i. p. 35), the Court held the whole pro-
ceedings incompetent under the £10 clause in the former
Police Act. Again, in the case of Boioie, High Court,
Jan. 25. 1845, (Broun, vol. ii. p. 377), we directed an
enquiry as to whether the locus was within the limits of
the burgh. And in the case of Lockie, the other day
(ante, p. 161), I was prepared, had it been necessary, to
have remitted to the magistrates to pronounce a special
interlocutor finding the facts. There is then no doubt
that the Court can ascertain all matter of fact which
goes to the jurisdiction of the inferior tribunal.
But the 86th section of the present act makes the
matter plain, in my apprehension. It is thereby enacted,
that in certain cases the police magistrate shall have no
jurisdiction. Is it conceivable that, if the magistrate
disregarded this enactment, and proceeded to convict
in one of the excepted cases, the party could not sus-
pend on a relevant allegation ? or would it be any an-
swer to say that the complaint and conviction are all
that we could look at, in order to determine the case ?
Clearly not. This makes it clear to me, that ascertain-
ment of the fact is our duty, if the fact is disputed, and
AND CIRCUIT COURTS OF JUSTICIARY. ] 79
that suspension is competent if, upon admitted facts, we No. 21.
. Graham i
see that the magistrate has committed an error in law, Moxey.
and exceeded his functions. High Court.
Feb. 17
Premising this, how stands this case ? The 135th sec- 1849. '
tion is general, and comprehends all houses. It uses the Suspension.
Avords ' other premises.' There was plainly no reason
why the jurisdiction in the case of riotous and disorderly
persons should be limited. Inns and hotels are, however,
specially excepted, in so far as the clause is directed
against tippling on Sundays and Fast-days. I think the
broad import of the word exciseable liquors, must be no-
ticed in both the 135th and 136th. This plainly com-
prehends more than spirits. Then, when the place is de-
scribed in the 136th, to which the prohibition is intended
to apply, it is said to be ' in the case of a spirit shop,' &c.
a word not before used. This means, therefore, in the
case of premises of a special character, and the words
must receive a broad, popular, and intelligible interpre-
tation. Again, observe the effect of the construction
contended for, that the use to which the premises are
applied, is to« determine whether they are to be consider-
ed as a spirit shop. The words as to the period of divine
service are the same in both the 135th and 136th, and
hotels are specially exempted in the former. But, if use
is to determine, then the exemption is virtually repealed
under the 136th.
We are told that the decision of the judge is final as
to the use on that night. If that is so, then every place
may, at the discretion of a police magistrate, be put in
this category. I cannot take this, and do not think this
was ever intended. The 137th and 138th sections are
general where a general evil is sought to be prevented,
thus broadly drawing a distinction which has been over-
looked in the present case. Nor can I think the 162d
section is intended to apply to coffee-rooms at an inn,
yet this would follow if the argument of use was sound.
There is another ground on which I think this suspen-
sion competent, viz., that there is here a plain deviation
180 CASES BEFORE THE HIGH CODRT
No. -21. from the accustomed form in the complaint. It charges
Graham r>.
Moxey. that the accused did, within his premises, ' the same as
High Court. ' t/ieu used and occupied by him, being a spirit shop,' &c.
1849. " Can any one doubt that this is a deviation in form, and
Suspension, for a vvilful purpose, to give jurisdiction, and exclude
review. I am of opinion that the device is ineffectual,
and that we can competently ascertain the facts other-
wise, although I am also of opinion that the complaint
is invalid.
Lord Mackenzie. — I think we have no jurisdiction to
entertain this suspension. It is not alleged that there
was any corruption on the part of the judge. It is only
said that he assumed an excessive jurisdiction, and this is
the point for us to consider. I agree that the judge can-
not give himself jurisdiction by framing the complaint
and sentence so as to be unexceptionable ex facie. How-
ever troublesome it may be, I think there are cases in
which we are empowered, and consequently obliged, to
enquire into the facts, to see if this has been done. But
does this arise here ? I think not. I doubt whether the
136th clause has any limitation as to jurisdiction. It
seems to define crime, and not to restrict jurisdiction as to
place or time. Now, could not the judge have competently
assoilzied when the case was heard ? Could he not have
assoilzied if the time was wrong ? I think he could, and
consequently, I think the expressions as to time and place
are definitions of the offence, and not limitations of the
jurisdiction. If this is so, then We have no power of re-
view, as by the act the decisions of the judge are made
final. In respect of the form of the complaint, I do not
think there is such a deviation as entitles us to interfere.
The use to which a party appropriates his premises seems
to me very important, if not conclusive, in determining
whether the offence was committed. Consequently, I
think that any person whatever, who mainly uses his
premises for the purpose of supplying spirits, will be
guilty of an offence under the act, if he continue to sell
them after 11 at night.
AND CIRCUIT COURTS OF JUSTICIARY. 181
Lord Moncreiff. — I entirely concur with the Lord No. 20,
Justice-Clerk. If we refuse to enquire into the facts, I Moxey,
think we shall set a very dangerous precedent. We are High Court.
not called on at present to do more than sustain the com- isis.
petency of the suspension. We must judge of the case suspension.
afterwards. The question of competency depends on the
statute and the complaint. This is founded on the 136th
section, and the question is. Does this section apply to
inns and hotels, to prohibit drinking after 11 at night?
It seems to me impossible to say it does ; inasmuch as
that construction would operate as a repeal of the ex-
emption as to the Sabbath, which is made in the 135th.
It seems impossible, therefore, to read this as a general
clause, notwithstanding the vague terms used at the
commencement. I think that the sound interpretatiofl
is, that the penalties are limited to offences by keepers
of spirit shops, and that that term must be understood
in its broad and popular meaning. It is argued that this
is not a question of jurisdiction. To my mind it is a
question of jurisdiction, and nothing else. The Legisla-
ture has said, that a man who commits a certain act in a
specified place, is guilty of an offence. Is not the limi-
tation of the place a limitation of the jurisdiction I If,
then, the police magistrate exceeded his jurisdiction, by
proceeding to convict, in respect of excepted premises, I
think not only that he thereby exceeded his jurisdiction,,
but that it is our duty to tell him so. Jurisdiction is de-
pendent upon a crime having been committed. But the
offence here charged is, in my view, no crime cognizable
by the police magistrates, except in certain places, in
like manner as in the 86th, certain offences are excepted
from his adjudication. Besides, I take it to be clear that
the libel should in all cases explicitly set forth a plain
violation of the statute. But is that done here ? Quite
the reverse. There is no description of the premises as
they are. It is only said they were, on a particular occa-
sion, used as a spirit shop. This is not enough, in my
opinion. It seems to me an intentional device, resorted
182 CASKS BEFORE THE HIGH COURT
No. 21. to in order to give a iurisdiction the statute had not eon-
Graham «. O J
Moxey. ferrcd, and to render the decision final. I think it will
HighCourt.be eminently dangerous to allow any encouragement to
1849. such an attempt, and I am for sustaining this suspension,
Suspension, to the extent of directing an enquiry into the facts of the
case. The case of a person occupying an hotel, having
systematically perverted it to the purpose of tippling,
does not arise here, and I give no opinion thereon.
Lord Medwyn. — I concur generally with Lord Mac-
kenzie. Review is admitted in certain cases only under
the 107th section. It is alleged that the suspender com-
mitted no offence, and that the magistrate exceeded his
jurisdiction in convicting him. There is no doubt that
we may enquire into the facts as respects the jurisdic-
tion. But here, to my mind, it is a question of crime.
Use is the important matter in a case like the present,
otherwise the act would be Constantly evaded. I do not
think the peculiarity of the form of complaint such a de-
viation as was contemplated by the statute in the 107th.
The not citing of the party, refusal to hear witnesses, &c.,
seem to me to be the points of form mentioned. The
description of the premises was no doubt introduced ad-
visedly, to meet the case, and I am of opinion that the
judge, having affirmed the complaint, has thereby con-
clusively established the fact, and excluded all further
enquiry.
Lord Cockburn. — I am of opinion that this appeal is
incompetent. And, under the excluding clause of this
statute, I am of this opinion, even on the assumption that
the magistrate was wrong, both on the facts and on the
law.
The act makes every judgment of the Police Court
' Jinal and conclusive,' unless there was intentional ini-
quity/ on the part of the magistrate, or a wiifid violation
of form ; or incompetency in the original complaint. There
is no intentional iniquity alleged here ; nor any original
incompetency, except what depends on an unwarranted'
adoption of the appellant's account of the facts. He
AND CIRCUIT COURTS OF JUSTICIARY. 183'
says that, de facto, his premises were not a spirit shop ; No- 21.
and, on this assumption of his innocence, he argues that Moxey. '
the magistrate had no jurisdiction over him. If this High Court.
reasoning were sound, it is difficult to see how finality 1849. '
could ever be secured. It is perfectly plain (to my mind Suspension,
at least), that whenever the disputed fact is of the essence
of the crime, it would be a mere mockery of such an ex-
cluding clause, to pretend to defeat or evade it by first
beginning by reviewing the sentence on its merits, but
without the evidence ; and then, after thus fancying that
the inferior judge was wrong on the facts, to infer legally
that he had never had any jurisdiction in the matter.
A statute directs a magistrate to deal in a particular way
with a man found dmnk on the street, and excludes all
review. I cannot conceive how this exclusion can be
set aside, by the convicted person asserting, and oifering
to prove, that he was not drunk, and that therefore the
magistrate had no jurisdiction. Whether the Judge of
Police was right or wrong as to the appellant's premises
having been a spirit shop, I cannot say ; because this was
a matter of proof, and the statute prohibits the evidence
from being preserved. But his being wrong as to the
facts is certainly no ground of appeal.
It has been objected, that what the statute condemns
is, night tippling, in what actualli/ are vaults, cellars,
spirit shops, or other similar places, but that this com-
plaint only set forth the appellant's premises to be so,
as then used by him. I humbly think this frivolous ; the
complaint does assert that the premises came within the
statutory description. No doubt it adds that this was,
as then used ; but this addition, though it explains, does
not vitiate the charge. I should be very sorry to see the
punctilious nicety of regular indictments introduced into
police complaints. But, at any rate, — let the complaint
be defective, — still, the magistrate, in sustaining it, only
erred in law, and mere legal error will not warrant an ap-
peal to this court ; especially on a point of form. It is
said that this deviation from form was wilful ; but this is
184 CASES BEFORE THE HIGH COURT
No. 21. a supposition for which there is not a vestige of evidence,
Mox^.*' nor, so far as I can discover, even of moral probability.
High Court. Being of opinion that the appeal is incompetent, we
\si9. ' have, properly, nothing to do with the merits. But as
Suspension, it has been maintaiped that these two run into each
other, I shall merely say that, in my opinion, it can
never be determined what is a spirit shop, merely or
materially by a consideration of its position or structure.
It depends mainly, if not entirely, upon the use of the
place. A building originally erected, and long used, and
still in its form, a mere church, if it be employed as a
gin palace, is a spirit shop. And a place which is used
solely as a storehouse, or a school-room, is not a spirit
shop, because its sign as such, and its counters, and
shelves, and desks, and tills, all remain unchanged. The
use necessary to make any place a spirit shop is always a
matter of degree, of which it is the magistrate's duty to
judge, according to the circumstances of each particular
case. Now this place was complained of, and, upon evi-
dence, was condemned as a spirit shop or other similar
place, as used. Whether the evidence warranted this I,.
who have not the evidence, cannot say, and do not con-
jecture. It was referred by Parliament to the magis-
trate. It seems to be supposed that this is a dangerous
power to confer on a magistrate. Parliament did not'
think so ; and I have no idea that there would be less
danger, or even practicability, in making such facts com-
petent to be reviewed in the Supreme Courts.
Lord Wood. — There is under the statute no general,
but only a special power of review under the 107th section,
including deviation of form, and want of jurisdiction.
Now, there is no form or schedule of complaint given in
this statute. The objection, therefore, resolves into this,
that the complaint does not state a statutory offence. I
do not think the limitation implied by the use of the phrase,
spirit shop, was intended to involve a question of jurisdic-
tion, but to secure a fair disclosure of the facts. I think
it is the use which makes the offence. This involves the
AND CIRCUIT COURTS OF JUSTICIARY. 185
jurisdiction. The Judge must do more than enquire into e^hams.
the outward mark or name of the premises ; he must ascer- ^"^^^y-
tain the nature of the use which is made of them, and then '^^j^^™''''
his decision is final. People may call their house what i849.
they choose. But if the Judge is to enquire into use, his Suspension.
judgment is final. The difficulty of the question will not
give us the power of review ; and although the decision is
erroneous we cannot alter it.
Lord Justice-General. — I coincide with the Lord
Justice-Clerk and Lord Moncreiff on botji points. I
think there was no jurisdiction. I am also struck with the
mode of drawing the complaint. If meant to raise the
question, it ought to have to set it out in clear terms.
But I think it clear from the whole that the charge was
made so as to avoid the question, and this shews that
they meant to hold that mere use was enough It ap-
pears to me that whilst there is a precise definition of an
offence in the statute, that is distinct from the locus
delicti; first the offence, then the place, and that limited
so as to raise the question of jurisdiction. If not com-
mitted within the locus this raises the question. Con-
ceding the question as to excess of territory, to my mind,
decides this. There are many cases in which an allega-
tion of no jurisdiction has been made, and an enquiry has
been directed, and I cannot disregard those authorities.
I think the words spirit shop ought to be determined
in the plain common sense meaning of the phrase. Ex-
ciseable liquors are sold in hotels. The magistrate con-
victs, and we are told that we cannot review because he
has done so, and misapprehended the statute. To this I
entirely demur. There is no question of a mask here.
When that arises it will be time enough to determine it ;
but we are not to commit an injustice in a case where
the facts are ascertained, from a fear that other persons
may pervert our judgment, by using the sign of an hotel,
whilst in fact they are mere spirit dealers.
The Court refused the bill of suspension, with expenses.
John Keegan, S.S.C. — John Richabdbon, W.S.— Agents.
N
186 CASES BEFORE THE HIGH COURT
Present,
The Lokd Justice-Clerk,
Feb. 19. Lords Moncreiff and Medwtn,
1849.
Her Majesty's Advocate — Craufurd A, D. — J. M. Bell A. D.
AGAINST
John Gordon Robertson — Inglis — J. A. Wood.
Evidence. — Held, that where a Procurator- fiscal, who had been em-
ployed as an agent in the Sheriff Court in a civil suit, out of which
the prosecution arose, had been present when the pannel emitted
two declarations, and had also acted on behalf of the Crown otherwise,
he could not be examined as a witness on behalf of the Crown.
Production. — Held, that the Jury are not entitled in a criminal ease
to inspect the documents libelled on, and compare them with other
productions, it being the part of the Crown to establish the case by
evidence given in the box.
No 22
J. G. Ko- John Gordon Robertson, surgeon at Dingwall, was
'^^''^°°' charged with Theft ; as also Forgery, with Using and
^jPXaT' Uttering as genuine a Forged Writing :
1849.
In so par as, the late Arthur Eobertson, sometime of the Ceylon
Civil Service, and thereafter residing in Dingwall, brother of you the
said John Gordon Robertson, having been possessed, at the time of his
death, of certain jewels or other precious or ornamental stones or gems,
amounting in number to 1680, or thereby, or to some other number to
the prosecutor unknown, some of which were set in gold, which were
kept by him deposited in a wooden or other box within his dwelling-
house at Dingwall ; and the said Arthur Robertson having died at his
said dwelling-house, on or about the 22d day of February 1848, and
having left a trust-disposition and deed of settlement, dated 2d No-
vember 1846, and codicil thereto annexed, dated 17th February 1848,
including his whole estate, heritable and moveable, whereby John
Macrobin, now or lately professor of medicine in Marischal College,
Aberdeen, the Reverend John Robertson Mackenzie, now or lately re-
siding in West Wing Crescent, Birmingham, nephew of the said
Arthur Robertson, and you the said John Gordon Robertson were ap-
pointed trustees and executors of the said Arthur Robertson, and
whereby the free moveable means and estate of the said Arthur Ro-
bertson were bequeathed in two equal shares to the said Reverend
John Robertson Mackenzie and you the said John Gordon Robertson ;
Theft, &e.
AND CIRCUIT COUETS OF JUSTICIARY. 187
and you the said John Gordon Robertson liaving been resident, or at No. 22.
J. G. Ro
bertson.
least repeatedly present, in the said dwelling-house of the said Arthur
Robertson, during the said 22d day of February 1848, and several
days immediately prior and subsequent thereto, and having been re- ^^^ J"^ '
peatedly resident for various periods, or at least repeatedly present, in 1 849.
said dwelling-house during the months of January, February, and Theft, &c.
March 1848, and you not having taken the charge of the said box and
jewels or other precious and ornamental stones or gems, as trustee and
executor foresaid, you did, on one or other of the days of the said
month of February, or of the month of January immediately preceding^
or of the month of March immediately following, the particular day
being to the prosecutor unknown, in or near the said dwelling-house,
wickedly and feloniously, steal and theftuously away take, the said
Box and the said Jewels or other Precious or Ornamental Stones or
gems, or part thereof, the property, or in the lawful possession, of the
said Arthur Robertson, or of his trustees and executors foresaid:
LiKEAs (2.), on one or other of the days of the months of January^
February, and March foresaid, or of the first twenty-foar days of the
month of April 1848, the particular day being to the prosecutor un-
known, and within the dwelling-house aforesaid, or within the house
which was occupied by you the said John Gordon Robertson, jn the
burgh of Elgin, at the time of the decease of the said Arthur Robert-
son, or in some other place in th& counties of Elgin or Ross, or else-
where, to the prosecutor unknown, you the said John Gordon Ro-
bertson having resolved to assert a pretended right to the said box and
jewels, or other precious or ornamental stones or gems, on the false al-
legation that the same had been made over to you, as a gift, by the
said Arthur Robertson during his lifetime, did, wickedly and feloni-
ously, forge and fabricate, or cause or procure to be forged and fabri-
cated, a missive or other writing, purporting to be addressed by the
said Arthur Robertson to you the said John Gordon Robertson, and
to be of the following or similar tenor : — ' Dingwall 25* Jany 1 84S
' My Dear John, I am sory to say that I have been much worse than.
' you have seen me since my return from Inv»', and I wish you to
' come here immediately. I fear the worst, and have forwarded the
' Box with Jewels, which I present as a compliment to you. I there-
' fore entreat that you come to my immediate aid and pray try and
' prevail on M" Robertson to come along with you for I need all th®
' comfort you can afford me at this time. With kindest regards I re-
' main my Dear John your aff ' Brother,' and time and place last above
libelled, you the said John Gordon Robertson did, wickedly and felo-
niously, forge and adhibit, or cause or procure to be forged and adhi-
bited, to the said missive or other writing, the following words and
subscription, ' Arthur Robertson,' intending the said subscription to
pass for, and to be received as, the genuine subscription of the said
Arthur Robertson: Farther, on th& 17th day of the said mouth of
188 CASES BEFORE THE HIGH COURT
No. 22. April, or on one or other of the first twenty- four days of the said mouth
bertson"' "^ April, the particular day, if not the said 17th day of April, being to
the prosecutor unknown, you the said John Gordon Robertson did,
Feb. 19. " wickedly and feloniously, use and utter, as genuine, the said false,
1849. forged, and fabricated missive, or other writing, having thereon the
Theft, &e. said forged subscription, you well knowing the same to be forged, by
putting the same, or causing or procuring some person to the prosecu-
tor unknown to put the same into the Post-Offioe at Dingwall, or into
some other post-office in Scotland to the prosecutor unknown, under a
cover or envelope, addressed to Donald Stewart, now or lately writer
in Tain, or by delivering the same, or causing or procuring some per-
son to the prosecutor unknown, to deliver the same to the said Donald
Stewart at Tain, or at some other place to the prosecutor unknown,
with intent that the said Donald Stewart, receiving the said missive,
or other writing, as genuine, should hold or use the same for your be-
hoof in defending you against any claim made, or to be made, against
you by the said John Macrobin and the said Reverend John Robertson
Mackenzie, or either of them, your co-executors and co-trustees fore-
said, for obtaining delivery of the said box and jewels or other pre-
cious or ornamental stones or gems, which had been traced to your
possession, or with some other fraudulent intent to the prosecutor un-
known ; as also, farther, a petition having been presented against you
the said John Gordon Robertson, by the said John Macrobin, and the
said Reverend John Robertson Mackenzie, and his mandatory, to the
sheriff of Ross and Cromarty shires, or his substitute, praying, inter
alia, to have you decerned and ordained to deliver up the foresaid
box, and the foresaid jewels or other precious or ornamental stones or
gems, and you the said John Gordon Robertson having opposed said
petition, and certain procedure having been had, in the process follow-
ing thereon, you the said John Gordon Robertson did, in support of
your said opposition, on the 1st day of June 1848, or on one or other
of the days of that month, or of May immediately preceding, or of
July immediately following, at or near the General Post-Office in
"Waterloo Place, in or near Edinburgh, or at or near one or other of
the receiving-houses in or near Edinburgh, where letters are received
or posted for the said General Post-OflBce, the particular receiving-
house being to the prosecutor unknown, wickedly and feloniously, use
and utter, as genuine, the said false, forged, and fabricated missive, or
other writing, having thereon the said forged subscription, you well
knowing the same to be forged, by putting the same, or causing or
procuring the said Donald Stewart, your agent in the process foresaid,
or some other person to the prosecutor unknown, to put the same into
the said General Post-Oifice, or into one or other of the said receiving-
houses, enclosed within an envelope addressed to William Ross, then
and now or lately sheriff-clerk-depute of Ross-shire, at Dingwall, in
which envelope you also enclosed, or caused or procured the said
AND CIRCUIT COURTS OF JUSTICIARY. 189
Donald Stewart, or other person to tbe prosecutor unknown, to enclose, No. 22.
a letter from the said Donald Stewart, addressed to the said William \^l^'
Ross, and on behalf of you the said John Gordon Eohertson, request-
ing the said William Ross to put the said false, forged, and fabricated jfgj,_ °g^ '
missive, or other writing, into the foresaid process ; as also, requesting 1849.
the said William Ross to put into said process a relative minute, con- Theft, &c.
sisting of three pages, or thereby, which was signed, on behalf of you
the said John Gordon Robertson, by the said Donald Stewart, and
which was likewise enclosed in said envelope ; and the said William
Ross having, on or about the 2d day of the month of June foresaid,-
received the said envelope, and the said false, forged, and fabricated
missive, or other writing, having thereon the said forged subscription,
and the said relative minute, and the said letter, did, at Dingwall, and
on or about the 2d and 3d days of the said month of June, or one or
other of said days, affix his process mark to the said false, forged, and
fabricated missive or other writing, as also to the said relative minute,
or did otherwise put the said false, forged, and fabricated missive or
other writing, as also the said relative minute, into the said process,
and did use the same as forming part of the said process, and did then
or thereafter give out the same to the opposite parties in said process,
as papers lodged or documents produced by you the said John Gordon*
Robertson.
Before this prosecution was instituted, there had been
a civil suit before the Sheriff of Ross and Cromarty, re-
specting the box of jewels said to have been stolen by
the prisoner. In the course of that litigation, the letter
said to have been forged was lodged in process by him as
genuine. In the course of the trial, Mr John Mackenzie,
writer in Dingwall, was called on the part of the Crown,
who being examined in initialibus, deponed —
I am Procurator- fiscal in Dingwall. I took charge of the case
iagainst the prisoner, before the Sheriff, on behalf of the executors of
the late Arthur Robertson. I afterwards took up the matter as Pro-
curator-fiscal. I presented two applications, and took a considerable
part of the precognitions. I was present when the pannel emitted two
declarations. I had the charge of the case as agent up to the period
when it was reported to the Crown agent.
Inglis . thereupon objected that the witness was in-
competent, on the ground of agency and partial counsel.-
Ceaufurd said — he did not purpose to examine him
generally, but merely as to a fact and a conversation which
190 CASES BEFORE THE HIGH COURT
No. 22. occurred before he took up the case in his public capacity.
bertaon. There was no other person who could depone to these
HighCourt. matters ; cases of Hagan, Dec. 26. 1838, Bell's Notes,
^i849.'' p. 248 ; Stephens, April 20. 1839, Swinton, vol. ii. p. 348.
Theft, &c. This case was stronger than those, as it was not sought
to ask any question as to facts which had come to the
witness's knowledge whilst acting in his public capacity.
Inglis replied — it was immaterial when the agency and
partial counsel began, or when it ended. The only question
was, had the witness been so mixed up in the preparation
of the case as that the objection applied. In this case it
plainly did, and consequently, it went to disqualify the
witness from giving any testimony whatsoever in the
- case.
Lord Moncreiff.— If we had time to examine the
cases, perhaps ground might be found for the admission
of this witness ; but, at present, I think it safer to sus-
tain the objection. It is not any matter, in my mind,
that, at the time of the interview, he was merely an op-
posing agent. He afterwards acted as Fiscal, not merely
in presenting two applications to the'Sheriff, which might
not have been any disqualification, but he was present at
the emission of two declarations, and went on to precog-
nosce the witnesses. At present, I am not prepared to
hold that the witness is admissable after that.
Lord Wood concurred.
The Lord Jusiice-Clerk. — I concur also. There is
no blame attributable to Mr Mackenzie, but it would
have been much better if, after presenting his applica-
tion, he had mentioned the fact to the Sheriff, that he
would be required as a witness, so that another person
might have conducted the case. The taking precogni-
tions is the important thing, and that on which we pro-
ceed. It must not, however, be taken that the Court
has decided any general point. The judgment must be
taken with reference to this particular case only.
The objection was sustained.
Craufurd, in addressing the jury, wfer alia, informed
AND CIRCUIT COURTS OF JUSTICIARY. 191
them that they would have an opportunity of inspecting No. ^
the document which was libelled as being forged, and bertson.
comparing it with the other productions, which were ad- HighCourt.
mitted to be the genuine writing of the deceased. 1349.
The LoBD Justice-Clerk, in summing up, informed Theft, &e.
the jury that the Court did not think it right to allow
them to see the documents, so as to make a comparison
in the box. The Crown was bound to have proved the
case against the prisoner, by evidence on which his coun-
sel could animadvert. Whatever might be the rule in
civil cases, the inspection of documents by fifteen gentle-
men, none of whom could be examined as to the ground
of his opinion, was not a satisfactory mode of establishing
guilt in a criminal court, and the jury would accordingly
assume, that unless the evidence which had been given
was conclusive as to the prisoner's guilt, that the prose-
cution had failed.
The Jury, by a majority of one, found the charge not
proven.
In respect of which verdict of assize, the said John
Gordon Robertson was assoilzied simpUciter and dismissed
from the bar.
Present,
The Lord Justice-Clerk,
Lords Mackenzie and Medwtn.
Her Majesty's Advocate — Crau/urd A.D. — J. M. Bell A.J>.
against
James Gibson and Malcolm M'Millan— Zo^aM.
Indictment — ^Eeletancy — Objection, that where two rooms had
been mentioned in the indictment, and the charge was that the pan-
nels had broken open a lockfast place ' therein,' without saying in
which room, sustained, as too yague.
192 CASES BEFORE THE HIGH COURT
No- 23. James Gibson and Malcolm M'Millan were indicted
James
Gibson and for Theft, by means of Housebreaking, and by Opening
M'Millan. Lockfast Pkces :
High Court.
March 12. In SO PAR AS, on the night of the 27th, or morning of the 28th, day
^^^' of November 1848, or on one or other of the days of that month, or
Theft, &c. of Ootober immediately preceding, or of December immediately fol-
lowing, you the said James Gibson and Malcolm M'Millan, did, both
and each, or one or other of you, wickedly and feloniously, break into
and enter the vestry of, or other apartment connected with. Saint
Mary's Episcopal Chapel, situated in or near Dalkeith Park, in the
parish of Dalkeith, and county of Edinburgh, by breaking the glass
and framework, or part thereof, of a window of said vestry or other
apartment, and entering thereby to the said vestry or other apartment,
and to the said chapel, or by some other means and in some cither way
to the prosecutor unknown ; and having thus, or otherwise to the pro-
secutor unknown, obtained entrance into the said vestry or other
apartment and chapel, you the said James Gibson and Malcolm M'Mil- ,
Ian did, both and each, or one or other of you, then and there wicked-
ly and feloniously, steal and theftuously away take from a lockfast
escritoire or writing desk, which you then and there, wickedly and
feloniously, opened by forcing the lid or top thereof with a chisel or
other instrument to the prosecutor unknown, seven, or thereby, bank
or banker's notes for one pound sterling each, one pound nine shillings
and sixpence sterling, or thereby, in silver and copper money, a brace-
let, a brooch : as also, a pocket- communion service, consisting of a
small silver patten, a small silver cup, and a glass bottle with a silver
top ; as also, a small paper box containing several postage stamps or
labels ; as also, from a lockfast box in said vestry or other apartment,
which box you then and there, wickedly and feloniously, forced open
by means of a chisel, or otherwise to the prosecutor unknown, a com-
munion cup, silver gilt or other metal, a patten or salver, silver gilt
or other metal, a salver or aim's dish, silver gilt or other metal ; as
also, from the said vestry, two silver or plated candlesticks ; as also,
from the said chapel, two ink bottles, two altar cloths, four, or there-
by, napkins, a pen-knife, a pair of scissors, a bread-knife, several sur-
plices, several pieces of chamois leather, a button hook, a small piece
of brass from the eagle lectern of said chapel, and a small piece of
brass from an altar candlestick, the property, or in the lawful posses-
sion, of the vestrymen or congregation of the said chapel or of his
Grace the Duke of Buccleugh, or of the Reverend William Bird
Bushby, now or lately clerk-chaplain of said chapel, and now or lately
Residing at Parsonage of Saint Mary's, Lugton, and parish of Dalkeith,
^nd county of Edinburgh.
AND CIRCUIT COURTS OF JUSTICIARY. 193
Logan, for the pannels, objected to the relevancy of No- 2s.
the indictment, in so far as that, having charged an en- Gibson and
trance by a window of the vestry or other apartment, M'Mm^.
and the chapel, it proceeded to charge that they did, High Court.
then. and there, forcibly open the escritoire or writing- ^^i^ig!^'
desk, and take therefrom the articles mentioned. This^rj^eft &c.
was not sufficiently stated, as it left it uncertain whether
the desk was in the chapel or in the vestry, and yet was
not stated in the alternative.
Craufurd replied, that it was uncertain in what por-
tion of the building the desk was placed at the time of
the theft.
The Lord Justice-Cleek.— If the words ' then and
' there,' apply to both the chapel and the vestry, it may
do, but I much doubt if this indictment will bear that
construction. It would clearly have been better to have
stated it as it is .charged farther on in the indictment,
alternatively.
The first part of the indictment, relating to the ar-
ticles stolen from the desk, was thereupon struck out.
Evidence having been led on both sides, the Jury
found the pannels guilty under the libel as restricted.
In respect of which verdict of assize, the said James
Gibson and Malcolm M'Millan were sentenced to be
transported for the respective periods of ten and seven
years.
194 CASES BEFORE THE HIGH COXJKT
Present,
March 13. The Lord Justice-Clerk,
1849.
Lords Mackenzie and Wood.
Her Majesty's Adtocate. — Craufurd A.D. — J. M. Bell A.D.
William M'Gall. — Moncreiff.
Indictment — Relevancy. — Circumstances in whicli a portion of a
minor was struck out, as being uncertain to which of the two majors
it was applicable.
Jurisdiction. — Circumstances in which an objection to the jurisdic-
tion of the Court was repelled.
Productions. — Circumstances in which the Court refused to allow
the Jury to see the documents produced, in accordance with the
rule stated in Robertson, ante p. 186.
No. 24. William M'Gall was indicted for Breach of Trust
M'Gaiu and Embezzlement :
High Court, jj, gQ j,^g ^g^ James Jeffreys Oswald of Edrington Castle, in the
1849. ' parish of Mordington, and shire of Berwick, and now or lately residing
Embezzle- *''^''®» being engaged in grindinggrain at Edrington Mills, in the parish of
ment and Mordington aforesaid, and in disposing of meal, flour, and similar articles,
breach of ^ bakers and others his customers who inhabited Dunse, Coldingham,
Eyemouth, and other places in the said shire, and carried on business
there,"and the said James Jeffreys Oswald having employed or intrusted
you the said William M'Gall as his clerk or agent, or otherwise acting
on his behalf, to make successive calls, at certain periodical intervals,
upon his said customers, for the purpose of your procuring orders for
goods from them, and of your uplifting and receiving payments of ac-
counts due by them for goods furnished, and of your granting discharges
to the customers therefor, and of your paying to the said James Jeffreys
Oswald the sums of money so uplifted and received by you the said
William M'Gall, or of your truly accounting to the said James Jeffreys
Oswald for the same ; and, pursuant thereto, you the said William
M'Gall having, on numerous occasions between the first day of the
month of May 1847 and the last day of the month of August 1848,
the date of each or most of said particular occasions being to the pro-
secutor unknown, at or near the several and respective places of busi-
ness or dwelling-houses of the several and respective customers afore-
said, uplifted and received, for behoof of the said James Jeffreys
Oswald, from the several and respective customers foresaid, sums of
money, extending in all to a great amount, in payment of accounts due
AND CIRCUIT COURTS OP JUSTICIARY. 195
by the said several and respective customers to the said James Jeffreys No. 24.
Oswald; and it being the duty of you the said William M'Gall, and ^^q^'
in aocordanoe with the trust committed to you as aforesaid by the said
James Jeffreys Oswald, to account truly to the James Jeffreys Oswald jiarch*13."
for all the sums of money uplifted and received by you as aforesaid, 1849.
and without delay to pay over the same or the amount thereof to him, Embezzle-
or to such party as he should direct, you retaining no part of said sums ™^"' *"•*„
1 J . it 1 ■ .1, c -J i Breach of
m your own lianas ; yet nevertheless, in the course oi your said tran- Trust.
sactions, between the first day of the said month of May 1847 and the
last day of the said month of August 1848, the particular dates being
to the prosecutor unknown, and at or near the several and respective
places of business or dwelling-houses of some of the several and re-
spective customers foresaid, or at or near Edrington Castle or Edring-
ton Mills aforesaid, or at or near some other place or places within or
near the said shire of Berwick to the prosecutor unknown, you the
said "William M'Gall did, wickedly and feloniously, and in breach of
the trust committed to you as aforesaid, embezzle and appropriate to
your own uses and purposes, various sums of money, consisting of bank
or banker's notes, and of gold, silver, and copper coin, or one or more
of the said species of coin, the proportions of each being to the prose-
cutor unknown, extending in all to a large amount, being part of the
money uplifted and received by you the said William M'Gall as afore-
said, and did fraudulently fail to pay or account for the said various
sums of money to the said James Jeffreys Oswald : In particdlak,
Catherine AUanshaw, now or lately baker and innkeeper at Eyemouth,
in the parish of Eyemouth, and shire aforesaid, and now or lately re-
siding there, being one of the foresaid customers of the said James
Jeffreys Oswald, and you the said William M'Gall, between the first
day of the said month of May 1847 and the last day of the said month
of August 1 848, at or near the inn or shop in Eyemouth of the said
Catherine AUanshaw, or at some other place near Eyemouth to the
prosecutor unknown, having uplifted and received from the said
Catherine AUanshaw, or from Agnes Allan, niece of, and now or
lately residing with, the said Catherine AUanshaw, or from some other
person to the prosecutor unknown, acting for behoof of the said
Catherine AUanshaw, on eleven different occasions, or thereby, sums
,of money due by the said Catherine AUanshaw to the said James
Jeffreys Oswald, amounting to £328 sterling, or thereby, conform to
eleven, or thereby, discharges or settled accounts, enumerated or set
forth in inventory No. I. hereto annexed ; or you having, place last
above libelled, uplifted and received as aforesaid, or some other number
of occasions, within the period last above libelled, to the prosecutor un-
known, sums of money due by the said Catherine AUanshaw to the
said James Jeffreys Oswald, amounting to £328 sterling, or thereby,
for behoof of the said James Jeffreys Oswald, you the said William
M'Gall did, wickedly and feloniously, and in breach of the trust com
196 CASES BEFORE THE HIGH COURT
Wiiliam "^'t^d to you as aforesaid by the said James Jeffreys Oswald, within
M'Gall. the period of time last above libelled, and shortly after all and each or
HighCourt. some of the several and respective occasions foresaid, on which you
March 13 . ...
1849. " uplifted and received money as aforesaid, due by the said Catherine
Embezzle- -^H^Dshaw to the said James Jeffreys Oswald, or at some other times
nient and within the said period to the prosecutor unknown, and at or near the
Trust '°° °^ ^^"P foresaid of the said Catherine AUanshaw or at or near
Edrington Castle or Edrington Mills aforesaid, or at some other place
or places in or near the shire of Berwick to the prosecutor unknown,
embezzle and appropriate, to your own uses and purposes, various sums
of money, amounting to £81 sterling, or thereby, being part of the
money uplifted and received by you as aforesaid, for behoof of the said
James Jeffreys Oswald, and did fraudulently fail to pay or account for
the said various sums of money, amounting to £81 sterling, or thereby,
to the said James Jeffreys Oswald : Likeas (2.), George Greenfield,
now or lately baker at Ooldingham, in the parish of Coldingham, and
shire aforesaid, and now or lately residing there, being one of the fore-
said customers of the said James Jeffreys Oswald, and you the said
William M'Gall, between the first day of the said month of May 184T
and the last day of the said month of August 1 848, at or near the
shop or dwelling-house in Coldingham of the said George Greenfield,
or at some other place in or near Coldingham to the prosecutor
unknown, having uplifted and received from the said George Green-
field, or from some other person to the prosecutor unknown, acting
for behoof of the said George Greenfield, on fourteen different
occasions, or thereby, suras of money due by the said George Green-
field to the said James Jeffreys Oswald, amounting to £317 sterling,
or thereby, conform to fourteen, or thereby, discharges or settled
accounts, enumerated or set forth in inventory No. II. hereto an-
nexed ; or you having place last above libelled, uplifted and received as
aforesaid, or some other number of occasions, within the period last
above libelled, to the prosecutor unknown, sums of money due by the
said George Greenfield to the said James Jeffreys Oswald, amounting
to £317 sterling, or thereby, for behoof of the said James Jeffreys
Oswald, you the said William M'Gall did, wickedly and feloniously,
and in breach of the trust committed to you as aforesaid by the said
James Jeffreys Oswald, within the period of time last above libelled,
and at or shortly after all and each or some of the several and respec-
tive occasious foresaid, on which you received money as aforesaid, due
-by the said George Greenfield to the said James Jeffreys Oswald, or
at some other times within the said period to the prosecutor unknown,
and at or near the dwelling-house or shop foresaid of the said George
Greenfield, or at or near Edrington Castle or Edrington Mills afore-
said, or at some other place or places in or near the shire of Berwick
to the prosecutor unknown, embezzle and appropriate, to your own
uses and purposes, various sums of money, amounting to £85 sterling,
AND CIRCUIT COURTS OP JUSTICIARY. 197
or thereby, being part of the money uplifted by as aforesaid for behoof No. 24.
of the said James Jeffreys Oswald, and did fraudulently fail to pay or ji'Gall.
account for the various sums of money, amounting to £85 sterling, or
thereby, to the said James Jeffreys Oswald : Ltkeas (3.), John Cock- March 12.'
burn, now or lately baker in Dunse, in the parish of Dunse, and shire iSi9.
aforesaid, and now or lately residing there, being one of the foresaid Embezzle-
customers of the said James Jeffreys Oswald, and you the said Wil- Breach"of
liam M'Gall, between the first day of the said month of May 1847 Trust.
and the last day of the said month of August 1848, at or near the
dwelling-house or shop in Dunse of the said John Cockburn, or at
some other place in or near Dunse to the prosecutor unknown, having
uplifted and received from the said John Cockburn or from some other
person to the prosecutor unknown, acting for behoof of the said John
Cockburn, on twenty-eight different occasions, or thereby, sums of
money due by the said John Cockburn to the said James Jeffreys Os-
wald, amounting to £561 sterling, or thereby, conform to twenty-eight,
or thereby, discharges or settled accounts, enumerated or set forth in
inventory No. III. hereto annexed ; or you having, place last above
libelled, uplifted and received as aforesaid, on some other number of
occasions, within the period last above libelled, to the prosecutor un -
known, sums of money, amounting to £561 sterling, or thereby, for
behoof of the said James Jeffreys Oswald, you the said William
M'Gall did, wickedly and feloniously, and in breach of the trust com-
mitted to you as aforesaid by the said James Jeffreys Oswald, within
the period of time last above libelled, and at or shortly after all and
each or some of the several and respective occasions foresaid, on which
you uplifted and received money as aforesaid, due by the said John
Cockburn to the said James Jeffreys Oswald, or at some other times
within the said period to the prosecutor unknown, and at or near the
dwelling-house or shop foresaid of the said John Cockburn, or at or
near Edrington Castle or Edrington Mills foresaid, or at some other
place or places in or near the shire of Berwick to the prosecutor un-
known, embezzle and appropriate, to your own uses and purposes,
various sums of money, amounting to £61 sterling, or thereby, being
part of the money uplifted and received by you as aforesaid for behoof
of the said James Jeffreys Oswald, and did fraudulently fail to pay or
ficcount for the said various sums of money, amounting to £81 sterling,
or thereby, to the said James Jeffreys Oswald : Likeas (4.), Robert
Wilson, now or lately baker in Dunse aforesaid, and now or lately re-
siding there, being one of the foresaid customers of the said James
Jeffreys Oswald, and you the said William M'Gall, between the first
day of the month of December 1847 and the last day of the said
month of August 1848, at or near the dwelling-house or shop in Dunse
of the said Robert Wilson, having uplifted and received from the said
Robert Wilson, or from some other person to the prosecutor unknown,
acting for behoof of the said Robert Wilson, on twelve different occa-
198 CASES BEFORE THE HIGH COURT
No. 24. eions, or thereby, sums of money due by the said Robert Wilson to
M'GaU^ the said James Jeffreys Oswald, amounting to £140 sterling, or there-
„. , _, by, conform to twelve, or thereby, discharges or settled accounts, enu-
March 13. merated or set forth in inventory No. IV. hereto annexed ; or you
^^^^- having, place last above libelled, uplifted and received as aforesaid, on
Embezzle- some other number of occasions, within the period last above libelled,
mentand i^ ^]^^ prosecutor unknown, sums of money, amounting to £140 ster-
Trust ling, or thereby, for behoof of the said James Jeffreys Oswald, you the
said William M'Gall did, wickedly and feloniously, and in breach of
the trust committed to you as aforesaid by the said James Jeffreys
Oswald, within the period of time last above libelled, and at or shortly
after all and each or some of the several and respective occasions fore-
said, on which you uplifted and received money as aforesaid, due by
the said Robert Wilson to the said James Jeffreys Oswald, or at some
other times within the period last above libelled to the prosecutor un-
known, and at or near the dwelling-house or shop foresaid of the said
Robert Wilson, or at or near Edrington Castle or Edrington Mills
aforesaid, or at some other place or places in or near the- shire of Ber-
wick to the prosecutor unknown, embezzle and appropriate, to your
own uses and purposes, various sums of money, amounting to £27
sterling, or thereby, being part of the money uplifted and received by
you as aforesaid for behoof of the said James Jeffreys Oswald, and did
fraudulently fail to pay or account for the said various sums of money,
amounting to £27 sterling, or thereby, to the said James JeSreja Os-
wald : LiKEAs (5.), Robert Keldie, now or lately baker in Dunse
aforesaid, and now or lately residing there, being one of the foresaid
customers of the said James Jeffreys Oswald, and you the said William
M'Gall, between the first day of April 1848 and last day of the said
month of August 1848, at or near the dwelling-house or shop of the
said Robert Keldie, or at or near the dwelling-house or inn of William
Jack, now or lately innkeeper at Dunse aforesaid, and now or lately
residing there, having uplifted and received from the said Robert
Keldie, or from the said William Jack, or from some other person to
the prosecutor unknown, acting for behoof of the said Robert Keldie,
on eight different occasions or thereby, sums of money due by the said
Robert Keldie to the said James Jeffreys Oswald, amounting to £80
sterling, or thereby, conform to seven, or thereby, discharges or settled
accounts, enumerated or set forth in inventory No. V. hereto annexed ;
or you having, place last above libelled, uplifted and received as afore-
said, on some other number of occasions within the period last above
libelled to the prosecutor unknown, sums of money due by the said
Robert Keldie to the said James Jeffreys Oswald, amounting to £80
sterling, or thereby, for behoof of the said James Jeffreys Oswald, you
the said William M'Gall did, wickedly and feloniously, and in breach
of the trust committed to you as aforesaid by the said James Jeffreys
Oswald, within the period of time last above libelled, and at or shortly
AND CIRCUIT COURTS OF JUSTICIARY. 199
after all and each or some of the several and respective occasions fore- No. 24.
said, on which you uplifted and received money as aforesaid, due by ^Igf'^
the said Robert Keldie to the said James Jeffreys Oswald, at or near —
the respective dwelling-houses or shop or inn foresaid of the said ji|ygh°i3.'
Robert Keldie, or of the said William Jack, or at or near Edrington 1 849.
Castle or Edrington Mills aforesaid, or at some other place or places Embezzle-
in or near the shire of Berwick to the prosecutor unknown, embezzle ment and
, . , , J . f Breach of
and appropriate, to your own uses and purposes, various sums ot rpj.j,gj._
money, amounting to £20 sterling, or thereby, being part of the money
uplifted and received by you as aforesaid for behoof of the said James
Jefeeys Oswald, and did fraudulently fail to pay or account for the
said various sums of money, amounting to £20 sterling, or thereby, to
the said James Jeffreys Oswald.
MoNCREiFF, for the pannel, objected to the relevancy
of the indictment, in so far as respected the third charge.
It was too ambiguous. The major charged, as well brpach
of trust, as also embezzlement, whilst the minor set forth
that at the place specified in the third charge, the pannel
* did embezzle and appropriate to his own uses and pur-
' poses various sums of money, amounting to £61 ster-
' ling, or thereby, being part of the money uplifted and
* received by him as aforesaid, for behoof of the said
' James Jeffreys Oswald, and did fraudulently fail to pay
' or account for the said various sums of money, amount-
' ing to the sum of £81 or thereby, to the said James
' Jeffreys Oswald.' This left it uncertain whether it was
intended to charge embezzlement or breach of trust,^ by
fraudulently failing to pay or account to the extent of
£61 sterling.
The Lord Justice-Cleek. — ^The objection must be
sustained, and that portion of the charge must be struck
out.
MoNCREiFP then objected, that the locus of the offence
was not sufiiciently described. No doubt, it was not
necessary to be very strict in describing a place where an
offence was committed, provided it was sufficient to shew
that it was within the jurisdiction of the Court. But
there was no precedent to sustain an indictment where
the locus was set forth in such an indefinite manner as
200 CASES BEFORE THE HIGH COURT
No. 24. that it was ' at or near Edrinffton Castle or Edringtonf
William , , „ „ , ,
M'Gaii. ' Mills, aforesaid, or at or near some other place or
High Court. ' places, ill or near the shire of Berwick, to the prose-
1849. " ' cutor unknown.' For aught that appeared in the libel
Embezzle- it Blight have been over the border, and consequently,
Breach°of beyond the jurisdiction of the Court. This was too am-
Trust. ijiguous, as the Court must take judicial notice that the
county of Berwick bordered on an adjoining country, to
the courts of which the pannel would be amenable if the
offence was committed beyond the bounds of Scotland.
Bell, A.D. — It was matter of form to describe the
locus in the manner set forth in this indictment, and the
Court could not presume against their own jurisdiction.
The LoED Justice-Cleek. — The Court have no doubt
on the question. In strictness, no particular place is in this
peculiar case necessary to be set forth in the indictment,
and the more general words ' at or near,' a're only stated for
technical purposes. In the present case, it seems very evi-
dent that sufficient is set forth to give the Court jurisdic-
tion over the alleged offence. It is said that he received the
money in Scotland, and failed to account to his employer
therein. It is impossible to say where the guilty inten-
tion of retaining the money which he had received on
behalf of his employer was first adopted, but it would be
presumed, in the absence of opposing evidence, that he
had all along had the intention on which he acted.
The prisoner having pleaded Not Guilty, and a long
proof having been led, consisting in part of receipts given
by the pannel to persons from whom he had received
money on behalf of Mr Oswald, one of the jurors, after
the Lord Justice-Clerk had explained their import in the
course of his charge, requested to see these documents.
Lord Justice-Clerk. — Gentlemen, — You had better
not have them. The Crown must prove their case by
evidence which can be tested by cross-examination, and
you are to judge on such evidence, so tested, and such
only. If you do not think that the case for the prosecu-
tion has been proved in this way, you will assume that it
AND CIRCUIT COURTS OP JUSTICIARY. 201
has failed. The mere inspection of documents by fifteen ^°[^^^
gentlemen in a jury-box, is not a satisfactory mode of M'Gaii.
establishing guilt against any party, and it is better that ?]sh court.
you should proceed to acquit than to convict on any con- i849.
jecture which you could so form, and which the prisoner Embezzie-
.„,.. T •! ment and
has had no opportunity of explaining. Jurymen might Breach of
by such comparison easily mislead themselves, and dif- "^"
ferent Jurymen might go on different conjectures as to
handwriting, or as to the accuracy or inaccuracy of entries
in the accounts; while, if these had been stated; and
known to the parties, they might be shewn to be all
erroneous and unsatisfactory. If the evidence given does
satisfy you respecting the documents, it is better to acquit.
The Jury, by a majority, found the pannel guilty of the
first and fourth charges as libelled, under deduction of
£20 from the first charge and of £10 from the fourth
charge.
In respect of which verdict of Assize, the Court ad-
adjudged the pannel to : be imprisoned in the prison of
Perth for the period of twelve calendar months.
Present,
The Lord Jcstice-Glerk, *^4g '
Lords Moncreipf, Mbdwyn, Cockburn, and Wood.
John Etch and Alfred Golf, Suspenders — Deas.
AGAINST
John Burnett, Respondent — Ai/toun.
Suspension — ^Attempt to Steal — Rogue and Vagabond. — Held,
refusing a Note of Suspension, that it was an offence cognisable
in a Police Court, to put a hand into a passenger's pocket with in-
tent to steal, and that a party would be properly convicted as a
rogue and vagabond in respect thereof.
6
202 CASfeS BEFORE THE HIGH COURT
No. 25. On the 5th day of March 1849, the suspenders were
Golf «. sentenced to be imprisoned in the prison of Glasgow, by
"™* ■ one of the bailies of the Police Court there, in virtue of
Mlrch'is. a complaint presented to him at the instance of the re-
'^^^' spondent, charging the suspender ' with having, on Satur-
Suspension. , ^^^ ^q^^^ in or near Queen Street, and in or near St
• Vincent's Place, Glasgow^ actors or actor, or art and
' part, feloniously attempted to pick the pockets of Seve-
' ral of the lieges, whose names and places of abode were
' tb the prosecutor unknown, and With being rogues and
'• Vagabonds, following no lawful employment.'
tt appeared that one of the suspenders had been seen
by a policeman with his hand in the pocket of a passenger
in the street, and that they were followed by him, to-
gether with an assistant whom he found, and apprehended
at the distance of a mile from the place where the al-
leged offence was committed. Having been taken before
the presiding bailie, the charge of being rogues and vaga-
bonds Was abandoned, hoi the case was proceeded with
on the charge of attempting to pick pockets, and a &&&-
viction ensued.
Deas, for the suspenders, — ^The only charge which
went to proof was that of an attempt to pick the pocket
of some persons unknown. This was not an offence. Ex-
cept in certain very great crimes, the law did not take
cognizance of abortive attempts. An attempt to steal
had never been found relevant in the Court of Justiciary,
rmilto magis it was not an offence in a Police Court,
where the parties were summarily tried, and the means
of disproving such a charge were obviously very difficult,
if not impossible, from the want of notice and other ad-
vantages given in the Court of Justiciary.
The Lord Justice-Clerk. — This may not be a petty
offence. The other day a party came down to Edin-
burgh with £8000, which he had been afraid to trust to
ia London banker to transmit to this city. It Stirely
would nOt have been a petty offence to have endeavoured
to pick that gentleman's pocket, and there is no doubt
AND CIRCUIT COURTS OF JUSTICIARY. 203
that the police havinsf seen the hand in the pocket, was N"- 25.
r o r ' Etch and
quite sufficient to warrant a conviction, without calling the Golf v.
party whose pockets were attempted to be rifled. All locus L
..,.., .,-1,1 1 1 HighCourt.
pcmitenticB must be considered to have been gone when March is.
the hand was inserted in the pocket. Practically, how- — ?-J
I. 1 . 1 . !■ • J. xi 1 Suspension.
consider this a proceeding against the suspenders
as rogues and vagabonds, of which their conduct was the
best and most satisfactory proof that could be desired.
The rest of the Judges concurred, and the note of sus-
pension was accordingly refused, with expenses.
John Leishman, W.S, — Agent.
Henby William Giles, Suspender — Craufurd.
AGAINST
Edmfnd Baxter, Eespondent — Deas.
Suspension — Interlocutor — Jurisdiction. — Held, (1.) That all in-
terlocutors in a cause in an Inferior Court, must be properly signed
as required by law, and that the Court will suspend if any material
stage of the proceedings is left unauthenticated. (2.) That where
the Court has original jurisdiction over the subject matter, they
have also the power of review, although the proceedings are of a
civil nature.
This was a Suspension of a decree of the Justices of No. 26.
the Peace for the county of Forfar, pronounced on a Baxter!
summary complaint, at the instance of the respondent HighComt.
against the complainer, as having contravened the pro- ^^^q
March IS.
visions of the 6th and 7th "Vict. c. 68,^ ' in so far as he ^
Suspension,
1 By the statute eth and 7th Vict., cap. 68, sect. 2, it is enacted,
' That, except as aforesaid, it shall not be lawful for any person to
' have. or keep any house or other place of public resort in Great
' Britain for the public performance of stage plays without authority,
♦ by virtue of letters-patent from her Majesty, her heirs and sucoes-
' SOTS, or predecessors, or without license from the Lord Chamberlain
' of her Majesty's household for the time being, or from the justices
204 CASES BEFORE THE HIGH COURT
No. 26. ' had for sometime back been in the practice of keeping
Baxter. ' opcQ an ercction or booth, m or adjoining to the oea-
High Court- ' gate Street of Dundee, or upon a yard or piece of
7u9. ' ' ground adjoining said Street, and on the north side
Suspension. ' thereof, in the parish of Dundee, and county of Forfar ;
' which erection was formed or composed partly of wood
of the peace, as hereinafter provided ; and every person who shall
offend against this enactment shall be liable to forfeit such sum as
shall be awarded by the court in which, or the justices by whom, ho
shall be convicted, not exceeding £20, for every day on which such
house or place shall have been so kept open by him for the purpose
aforesaid without legal authority.' — Sect. 11, ' That every person
who for hire shall act or represent, or cause, permit, or suffer to be
acted or represented, any part in any stage-play in any place not
being a patent theatre, or duly licensed as a theatre, shall forfeit
such sum as shall be awarded by the court iu which, or the justices
by whom, he shall be convicted, not exceeding £10 for every day
' on which he shall so offend.' — Sect. 19, ' That all the pecuniary penal-
• ties imposed by this act for offences committed in England may be
' recovered in any of her Majesty's Courts of Record at Westminster,
' and for offences committed in Scotland by action or summary com-
' plaint before the Court of Session or Justiciary there ; or for offences
' committed in any part of Great Britain in a summary way before
' two justices of the peace for any county, riding, division, liberty,
' city, or burgh where any such offence shall be committed, by the
' oath or oaths of one or more credible witness or witnesses, or by the
' confession of the offender ; and in default of payment of such penalty,
' together with the costs, the same may be levied by distress and sale
• of the offender's goods and chattels, rendering the overplus to such of-
' fender, if any there be, above the penalty, costs, and charge of dis-
' tress ; and for want of sufficient distress the offender may be impri-
• soned in the common gaol or house of correction of any such county,
' riding, division, liberty, city, or burgh, for any time not exceeding
' six calendar months.' — Sect. 20, ' That it shall be lawful for any
' person who shall think himself aggrieved by any order of such jus-
' tices of the peace, to appeal therefrom to the next general or quarter
' sessions of the peace to be holden for the said county, riding, division,
' liberty, city, or burgh, whose order therein shall be final.' — Sect. 21,
' That the said penalties for any offence against this act shall be paid
' and applied in the first instance toward defraying the expenses in-
' curred by the prosecutor, and the residue thereof (if any) shall be paid
' to the use of her Majesty, her heirs and successors.'
AND CIRCUIT COURTS OF JUSTICIARY. 205
' or canvass, and was partly rested against stone walls, No. ae.
' and was called the ' Sanspareil Theatre,' or by some Baxter.
' other name similar thereto ; and that the complainer HighConrt.
' had been in the habit nightly or frequently performing ^849.^*'
' or causing to be performed, stage plays therein, with- suspension
' out any license or other legal authority being granted
' to him for that purpose, in terms of the provisions of
' the said Act of Parliament ; and particularly, that the
' complainer did, on the evening of Tuesday, the 30th
' day of January 1849, contravene the said recited
' Act of Parliament, by performing, or causing to be
' performed, without any license or other legal authority
' in said erection or booth, a stage play or other enter-
' tainment of the stage called the ' Innkeeper of Abbe-
" ville,' and that bills or programmes thereof, as well as
' of other such representations, given and performed in
' said theatre, were circulated throughout the town of
' Dundee, but without the name and place of abode of
' the manager, as required by the said statute ; and
' generally, that the complainer had carried on and con-
' ducted the said theatre without a license, and had
' performed stage plays therein, in a manner contrary
' to law, and in violation of the provisions of the said
' Act of Parliament.'
The prayer of the complaint was, that the Justices
should grant warrant for summoning the complainer to
appear before any two of their number, at a time and
place to be fixed by them, and failing his so appearing,
to grant warrant for apprehending him, and bringing
him before the Justices for examination, and likewise to
grant warrant for summoning witnesses, to be examined
regarding their knowledge of the premises ; and on proof
thereof, or part thereof by confession, or otherwise, to
find him the said Henry William Giles guilty of con-
travening the foresaid statute ; and to decern against
him for such penalties in respect of such acts of con-
travention, and in terms of the provisions of said sta-
tute as they might consider proper, to be recovered and
206 CASES BEFORE THE HIGH COUBT
No. 26. applied as authorised and directed by said statute, and
Baxter! with the whole costs of procedure and recovery, and to
High Court, do farther and otherwise in the premises as by the said
^ml^' statute their Honours were authorised and empowered
Suspension. *« ^0, and as to their Honours might seem meet.
Upon advising this complaint, the following deliver-
ance was pronounced : —
' Dundee, 31st January 1849. — The Justices subscribing having
' considered the foregoing Petition and Complaint, grant warrant to
' Constables of the Peace and other officers of the law, to serve a
' copy of the said complaint, and of this deliverance, on the said Henry
' Willfam Giles, or Henry Giles complained upon ; and ordain him to
' appear personally before us, or any two or more of Her Majesty's
' Justices of the Peace for the county of Forfar, within the Town
' Hall of Dundee, on Friday the second day of February next, at
' twelve o'clock noon, to answer to the said complaint, with certifica-
' tion : Also grant warrant for summoning witnesses.
' Alex. Lawson, J. P.
' William Thoms, J. P.
No copy of this complaint was served on the com-
plainer until the evening of the day before that on which
he was cited to appear before the Justices, at twelve o'clock
noon. He lodged, however, a short answer to the com-
plaint, denying generally the statement contained in it,
and urging several pleas, amongst others, that the per-
son Robert Geikie, who served the complaint, was not a
constable or admitted officer of Court, in which charac-
ter he had acted, and that, therefore, and upon other
grounds, the complaint must be dismissed.
The Justices, at once and without proof, repelled all
the pleas urged, and refused any prorogation to allow
time to precognosce witnesses against the complainer, or
to adduce witnesses to rebut the charge made against
him. Whereupon the complainer and his agent imme-
diately left the Court, and without any request or order
that the complainer should remain, the Justices went on
with the case in his absence, and pronounced the follow-
ing sentence or conviction : —
ANO CIRCUIT COURTS OF JUSTICIARY. 207
' The Justices having considered the complaint, with the proof ad- No. 26.
' duced, and the whole procedure, find it proved that the said Henry jjaxterl
' William Giles or Henry Giles, complained upon, on the evening — -
' of Tuesday last, the 30th day of January last, did keep open a house March IS."
' or erection of public resort, situated in the Seagate Street of Dundee, ^^^^-
' for the public performance of stage plays, and designed by the name Suspension*.
' of the " Sanspareil," and that there was performed in the said house
' or erection, or theatre, on the evening aforesaid, a play or drama en-
' titled " The Innkeeper of Abbeville," and that without any license in
' favour of the said Henry William Giles, and in contravention of the
' Act of Parliament libelled on : The Justices therefore find, that the
' said Henry William Giles or Henry Giles has, in terms of the said
' Act of Parliament, incurred for the said ofience a penalty not exceed-
' ing £20, but which the Justices hereby modify to £lO, and decern
' and adjudge the said Henry William Giles or Henry Giles instantly
' to make payment to the complainer of the said mitigated penalty of
' £10, hereby awarded, to be accounted for and applied, in the first
' place, towards defraying the expenses incurred by the prosecutor, and
' the remainder thereof to be paid to the use of Her Majesty, or her
' heirs or successors ; a,nd, /ailing pai/ment, grant warrant for levying
' the said penalty by distress and sale of the said Henry William
' Giles's or Henry Giles's goods and chattels, all in terms of the pro-
' visions of the said Act of Parliament, and decern. Five words de-
' leted.
' John Ogilvy.
' Wm. Thoms, J. p.
' Jab. Brown, J. P.
' John Thomson, J. P.
' Alex. Lawson, J. P.'
Amongst the reasons of suspension was the following :
That ' It was illegal and incompetent for the Justices to
' repel all the complainer's defences or pleas without
' proof, and before having proceeded to the consideration
' of the case on the merits, as it is proved they did by
' the minutes of their sederunt, which run, inter alia, in
' these terms : — " The cause being called, and the de-
" fender having failed to appear, Mr William Allen
" Flowerdew, writer in Dundee, appeared for the defen-
" der, and gave in written answers to the complaint,
" which were verbally answered by the Procurator-fiscal ;
" aijid the Justices having considered the objections
" stated on the said answers, and the answers made to
208 CASES BEFOEE THE HIGH COURT
No. 26. « these objections by the Procurator-fiscal, the Justices
Giles ■». J ■' , . . ,
Baxter. " unauimously repelled the whole of these objections.
High Court. ' This minute or interlocutor, or whatever else it may
1849. ' ' be called, was not signed by two Justices, as required.
Suspension. ' nor was it signed even by one. The defences or pleas,
' therefore, which were to exclude the complaint alto-
' gether, have not yet been legally or competently dis-
' posed of.'
The respondent answered, that the interlocutor
repelling the suspender's objections, which had been
pleaded in limine, as a bar to farther procedure, was
pronounced only to the effect of allowing the case to
proceed, and the proof to be led, and was signed by the
preses of the Justices in presence, and with the sanction
of a full bench. Besides, the procedure would have been
unobjectionable, even if there had been no formal inter-
locutor repelling the objections which had been thus urged
as preliminary pleas, these objections being sufficiently dis-
posed of, by going on to consider and to give judgment
upon the merits. There was no necessity, in a case like
this, that the suspender should be present at the proof
and subsequent procedure. The suspender could have
no right, after appearing along with his agent, and join-
ing issue in the cause, to withdraw himself from the
Court, to the effect of creating an objection to the pro-
ceedings, as having been continued and brought to a
close in his absence. He had barred himself, personali
ewceptione, by appearing in Court and pleading to the
complaint, from maintaining any such objection, even if
the statute had contemplated his personal presence.
But there was not a word in the statute to countenance
such a plea ; and it was in no view necessary to enlarge
upon this objection.
The Court having inspected the interlocutor repelling
the objections requesting delay, and finding that it was
not signed, called upon Deas, for the respondent, to sus-
tain the proceedings sought to be suspended, in respect
that the objections thus repelled were directed against the
AND CIRCUIT COURTS OF JUSTICIARY. 209
title to pursue — ^the relevancy of the offence— the compe- No. 26.
tency of the Court — and the regukrity of the citationj Baxter!
observing that it was plainly incompetent to repel such High Court.
objections by an unsigned interlocutor. ^7m.^'
Deas. — These were mere minutes of procedure, which suspension.
ultimately resulted in a conviction, which was signed. It
was not necessary that the narrative of what took place
before the conviction should be signed at each stage of
the proceedings. The conviction was right and regular,
and what took place before might be signed by the
the preses as an authentication.
Lord Justice-Clerk. — I do not think so. I never
heard that the preses could so sign. Two Justices are
required for every stage of the procedure. I do not say
how it would have been had there been no interlocutor
repelling these preliminary defences ; but, however tech-
nical the objection may be, I think the statutory require-
ment must be complied with, and that the signature of two
justices is absolutely necessary to the validity of each
deliverance in the procedure. It is of no consequence
that the objection is a technical one. Were I not to
sign ' I. P. D.' the objection would be technical, but
would nevertheless be fatal.
Deas. — The question then came to be, was the sus-
pension competent in the Justiciary Court. He ought
to have gone to the Civil Court, according to decisions
pronounced in both Courts. This must undoubtedly
have been the case but for the 19th section of the
statute, which gave original jurisdiction to the Court of '
Justiciary. That, however, did not necessarily compre-
hend the power to review proceedings of an inferior
Court, which proceedings were in themselves essentially
of a civil nature. There was no doubt that a suspension
was competent in the Court of Session, as there was
nothing to deprive that Court of its inherent jurisdiction
in all civil causes ; and it having been decided that in all
such cases the subject-matter of the proceedings was
210 CASES BEPORK THE HIGH COURT
No-J6. esseutially of » civil nature, it followed that the Court of
Baxter, Sessiou had exclusive jurisdiction in cases of suspension.
High Court. Farther, by the 20th section of the act, an appeal viras
1849. ■ given to the Quarter Sessions from the decision of the
Suspension. Justiccs, and the party seeking to set aside their decision
ought to have gone there before coming to any superior
tribunal to set aside the conviction.
The Lord Justice-Clerk. — ^^That section is only per-
missive. No doubt you are thereby enabled to go to the
Quarter Sessions, but there is nothing therein to shew
that you are compelled to go there before coming here.
The 19th section gives us jurisdiction over the subject-
matter, and I take it that we have thereby full power of
reviewing the decision of all inferior judicatories. I think
the non-signing of the interlocutor repelling the prelimi-
nary pleas fatal to the whole proceedings. I do not go
on the absence of the complainer, because he voluntarily
left the Court ; but I proceed on the ground that the
proceedings in Courts of Justice must be regularly
authenticated, which, in my opinion, has not been done
in this case.
The other Judges concurred, and the note of suspen-
sion was accordingly passed, with expenses.
W THEBSPOON & Mack — Ddncan & Millah— Agents.
AND CIRCUIT COURTS OF JUSTICIARY. 211
WEST CIRCUIT.
GLASGOW.
Present,
Lords Mackenzie and Moncbeiff. lg4g.
Her Majesty's Advocate — E. F. Maitland, A.D.
AGAINST
Robert Vance. — W. E. Ayton.
Gulp ABIE Homicide. — Circumstances in which the Jury, under the
advice of the presiding Judge, found a pannel not guilty of culpahle
homicide as lihelled, it heing charged that the act, whereby death
was occasioned, was done wickedly and feloniously.
Robert Vance, calico printer, was charged with N0.27.
Culpable Homicide. Vance.
In so FAR AS, on the 9th or 10th day of September 1848, or on one March 23.
or other of the days of that month, or of August immediately preced- 1849.
ing, or of October immediately following, on or near the public road Culpable
or street opposite or near to the house situated in or near Dovesland, Homicide.
at or near Paisley, in the Abbey Parish of Paisley, and shire of Ren-
frew, then and now or lately occupied by Matthew Sim, weaver, then
and now or lately residing there, you the said Robert Vance, did,
wickedly and feloniously, attack and assault the now deceased David
Deans, then a wheeler, and then residing in or near High Carriagehill,
at or near Paisley, and did, with your fist, strike him a severe blow
on or about the head, and did knock him down, and did cause his head
to come violently in contact with the ground ; by all which, or part
thereof, the said David Deans was mortally injured, so that, after
lingering till the 11th day of September 1848, he then died in conse-
quence of the injuries thus received, and was thereby culpably bereaved
of life by you the said Robert Vance.
The evidence in the case was as follows : —
Matthew Sim, weaver. — I live at Dovesland, Paisley. On 29th
September, my brother and some women came to visit me, travelling
in a gig, and put up their horse. The gig stood in front of my house.
I know the prisoner. He was of the party in my house, but did not
212
CASES BEFORE THE HIGH COURT
No. 27.
Robert
Vanee.
Glasgow.
March 23.
1849.
Culpable
Homicide.
come by the gig. The party prepared to get the gig yoked. This
was rather past eleven. An alarm was given that some person had
taken it away. I saw that it was gone. I followed it, seeing it at a
distance going away. There was no horse in it, but it was drawn by
a man. I found it standing on the street. It was brought back to
the front of mj house. Vance was there. He went into the gig to
protect it, and said they that would meddle with it would meddle with
him. Three men, strangers to me, were standing on the opposite side
of the street. They came across and asked Vance ' what do you want
' there.' They had talk rather in the way of quarrelling. The three
had not been at my party. Vance came out of the gig. I was anxious
to secure the gig, but saw Vance and one of the three commence to
fight. I paid no attention to them after that, as I was looking for a
place to put the gig in. I went away with it. When I came back I
found Vance in my house. He was much agitated, and said that if it
was true he had struck Deans he was very sorry for it, as he was the
last he would strike. There was blood on Vance's cheek. I went out
again to see if the three people were gone. They were still there. I
did not know Deans even by sight. I advised the men to go away
before I got Vance to go away from my house.
Oross-ewamined. — The three men were strangers to me. When the
gig was brought back I saw a man, John Cherry, standing on the
pavement. I thought he had taken the gig away. I have known
Vance four years. For any thing I have seen, I consider him a very
quiet inoffensive man.
James Deans. — I am son of the late David Deans. I heard a noise
On Carriagehill on the night of the 9 th of September. I went to see
what it was. I know Vance, and saw him there. He was fighting.
I did not know the man he was fighting with. For all I saw just one
man only. I saw my father there. He was standing behind him. He
had been before a little way off. He said when he went forward,
' stick in Vance.' I thought my father was on the same side as Vance.
Vance then threw back his hand behind him. He did not turn round.
His hand struck my father and he fell backwards. He was not able
to rise, and was carried into a house. In an hour he was taken home
and put to bed. I never saw him rise afterwards. This was on a Sa-
turday and he died on the Monday morning following. I never heard
'him speak after the injury. Vance and my father were acquainted —
were engaged in the same work, and good friends. I saw nothing to
shew that Vance knew that it was my father who was behind him.
Cross-examined. — Vance visited my father on the Sabbath day be-
tween the injury and his death.
Matthew Sim junior. — I am the son of Matthew Sim, a previous
witness. I remember of the gig being taken away and brought back.
Vance was there after it was brought back. Vance stepped into the
gig, and said ' he that meddles with the gig meddles with me.' I went
AND CIRCUIT COURTS OF JUSTICIARY. 213
into the house. I heard the noise of a battle, about ten minutes after . No. 27.
Vance went into the gig. I went out. I saw Vance and another E,ol>ert
man fighting. I knew David Deans. I saw him coming running up — - .
the road behind Vance. He said, ' man. Bob, pelt into him.' Vance ■^/i^^2S
turned and saw Deans sparring. He then struck Deans on the side of 1849.
the head. Deans fell flat on his back. He did not rise. Vance said, Culpable
now ' there's one of your men down.' Deans was carried to a house Homicide.
close by Sim's. Vance then went into our house. Vance had got
spirits, and Deans also. I saw no blood on Vance.
Cross-examined. — I think Deans was sparring at the man fighting
with Vance. There was one fighting with Vance, and afterwards
stripped, keeping the ring as second to the man fighting with Vance.
Vance's fist was closed. After Deans fell he lay about five minutes.
There was a crowd. This was about eleven at night, and it was pitch
dark. The crowd were trampling round where Deans lay. I did not
keep my eye on him all the time he was lying there.
£y the Court. — I don't know if Deans, in coming forward, meant
to be second to Vance.
Agnes White or Garvan. — I live in Paisley. I know Sim's house.
I saw a disturbance there on the 9th of September, t saw Vance
there. He was fighting with a man I did not know. I saw Deans
come up. He and I came up together.. He said, with an oath,
' Vance, stick in, d n him.' We were behind Vance. Deans was
beside me. Vance did nothing when Deans said so, except that he gave
a kind of back lick with the back of his hand. He hit Deans. I was
next him, but crouched or I should have got it. Deans fell and the
back of his head came on a stone like the shot of a gun. I ran away
as soon as he fell, but soon came back again. I looked in his face but
he made no motion. He was the worse of spirits, and I thought it
was that that made him stupid.
Cross-examined. — When Vance threw back his hand the crowd
were pressing on him, both before and behind, so much so that he could
not stir. I thought in throwing back his hand he wished to make
way.
EXCULPATORY EVIDENCE.
Ann M' Alpine. — I knew Deans. I remember an aflfray when
Deans received an injury. 1 did not see the beginning of the battle.
When I first saw Deans two men were supporting him. One said to
the other, ' they are killing one another,' and then they let Deans fall
quite carelessly. He fell towards the side, and the back of his head
struck the ground. The men went forward and let him lie. I did
not see Vance there at this time.
Ayton, in addressing the Jury, on behalf of the pan-
214 CASES BEFORE THE HIGH COURT
No. 27. nel, contended that the facts proved did not support the
v^nc^ charge libelled. Had the blow been originally directed
Glasgow, against an opponent the case might have been different,
^ui9^^' but as it at present stood, it was clear not only that
Culpable "Vance had not intended to strike any person seriously.
Homicide. ^^^ ^^lat he certainly never intended to strike a sup-
porter. The accident did not, in truth, occur during the
fight, it was in preparation for "renewing it, by driving
away persons pressing on himself; and however the pan-
nel might have been criminally responsible for a chanCe
blow struck at another in the course of fighting his op-
ponent, it could not be held that what was done in the
way of clearing the ring was equally culpable as if the
blow had been given by mistake in the course of the
aflfray.
Lord Monceeiff, after conferring with Lord Mac-
kenzie, told the Jury, that although it was evidently a
very light case of culpable homicide, and although, in so
far as the misfortune which befell Deans was concerned,
it was clear that it was imdesigned on the part of the
pannel, yet, in the opinion of the Court, it could not be
said that the pannel was free fi-om blame, inasmuch as
he was engaged in an illegal act at the time, and the
blow was given in the course of the fight ; but as the
case had turned out, though it must be held to be
culpable homicide, yet it could not be said, in the terms
of the libel, that it was done wickedly and feloniously.
The Jiu-y unanimously found the pannel not guifty as
libeUed.
In respect of which verdict of Assize, the pannel was
assoilzed simpliciter, and dismissed from the bar.
AND CIRCUIT COURTS OF JUSTICIARY. 215
WEST CIRCUIT.
STIRLING.
Spring, 1849.
April 17.
Judges — The Lord Justice-Cierk and Lord Wood. 1849.
William Dinwidie, Appellant — E. F. Maitland,
AGAINST
William Knox, Respondent — Logan.
Poor Law Settlement. — Held that a mother cannot acquire a
settlement for her child by a former husband, by means of a joint
industrial settlement with a second husband.
This was an Appeal against a sentence of the Sheriff ^q ^s.
of Stirlingshire. It arose in the following manner : — ^'^q^ "'
The appellant raised an action before the Sheriff of Stir- ' stiiims
ling for the sum of £4:0:9, as the amount of certain ^?g]9^^"
relief advanced by him as inspector of the poor of the . ^^j
parish of Dumfries, on account of Elizabeth Forsyth
Wilson. It appeared that her parents had obtained a
settlement in the parish of Dumfries ; and that in 1831,
when the pauper, in respect of whom the dispute arose,
was five years of age, her father died. In 1832, the
widow married a person of the name of Innes, who,
in the following year, removed with his family, including
Elizabeth Wilson, to the parish of St Ninians, and re-
sided there till 1842, when they all returned to the
parish of Dumfries. Shortly after which, and without
acquiring any settlement, the said Robert Innes died. In
1846, application for interim relief, on behalf as well of
Elizabeth Wilson as of the children of Innes and their
mother, was made to the appellant, who gave the usual
statutory notices to the respon^Jent. The amount ex-
pended on behalf of the widow and children of Innes
was repaid by the respondent, who refused to pay the
sum advanced for the child of the former marriage.
The Sheriff-substitute decerned in favour of the re-
Appeal.
216 CASES BEFORE THE HIGH COURT
No. 28. spondent; and on appeal, the Sheriff pronounced the
Knox, following interlocutor : —
Stirling.
'*'m9.^' ' Stirling, 21st July 1848.— Having advised with the Sheriff, who
had considered the appeal for the pursuer ; Finds, that the pauper
Elizabeth Forsyth Wilson was born in Dumfries of married parents,
and that her father had then acquired a settlement in the parish of
Dumfries, or at least had a settlement elsewhere than in the parish
of St Ninians : Finds, that while the pauper was a pupil, her mother
contracted a second marriage with Robert Innes ; and that her hus-
band, accompanied by her and her child, the said Elizabeth Forsyth
Wilson, removed to the parish of St Ninians, where he acquired a
settlement ; Finds, that the present action is for repayment of cer-
tain sums granted in way of relief to the said Elizabeth Forsyth
Wilson, by the inspector of the poor of the parish of Dumfries, and is
' brought against the inspector of the poor of the parish of St Ninians,
' on the assumed liability of the latter parish to relieve the pauper,
' in respect that a woman who marries a second time acquires the
• settlement which belongs to her second husband, and communicates
• the settlement so acquired to a child of the first marriage incapable
■ of acquiring a settlement in its own right : Finds, that a widow,
■ acquiring a new settlement by marriage with a second husband, does
■ not communicate the settlement so acquired by her to the children
' of her former marriage, and that the settlement of the children con-
' tinues as it existed before the second marriage of their mother;
• Dismisses therefore the appeal, affirms the interlocutor appealed
' from, and decerns. (Signed) ' Job. Hay.'
' Ifote. — The case of the Parish of Crieff against the Parish of
' Fowlis Wester, July 19. 1842, has fixed that a widow may, by in-
' dustrial residence, acquire a settlement for her infant children ; but
' if she marries again, the question arises, whether that will affect the
' settlement of her children previously acquired, whether through her,
' under her industrial residence as a widow, or through their deceased
' father, if his settlement still continue to be his children's at the time
' of their mother's second marriage. The case of Crieff does not, it is
' thought, solve the last at least of these cases, which is the one which
' has now occurred. For, in the present instance, the widow married
' a year after her first husband's death, and, in the following year,
' removed with her second husband from the parish of the settlement
' of her first. It is conceived to be clear, that the mother's residence
' in St Ninians could not directly acquire a settlement for the chil-
' dren of her first marriage, because such residence could not acquire
' a settlement for herself, it being her husband's residence which
' would give her a settlement in that parish. If then the mother
AND CIRCUIT COURTS OP JUSTICIARY. 217
' cannot acquire a settlement for a child by a former marriage when she No. 28.
' is not acquiring a settlement for herself, except derivatively through '^™!"'^'^ '"■
' her husband, it would seem to follow, that her children must retain — r-.
' the settlement they had acquired previous to their mother's second April 17.
' marriage. It is difficult to understand on what principle a married 1 849.
' woman can communicate her second husband's settlement to her Appeal.
' children of a former marriage. (Initialed) J. H.
E. F. Maitland for the Appellant. — This appeal was
brought to decide the question, whether a married wo-
man, haying obtained a settlement by means of industrial
residence, could communicate a right of settlement to a
daughter by a former marriage. The case of the heri-
tors of Crieff against Fowlis Wester had decided that a
widow could do so to her children, and it followed, that
the same result would ensue in respect of children of a
former marriage^ if the widow married again. Assuming
that the mother had a proper settlement at St Ninians,
it followed that the parish in which she was settled, was
bound to Mfil the obligation which previously fell upon
her to support her child. This obligation was not in
any way affected by means of the subsequent marriage.
Farther, the mother took part in the industrial occupa-
tion ; and the parish of St Ninians which had the bene-
fit of that, could not repudiate any obligation ensuing
therefrom, especially as this child was part of the family
of the stepfather.
Logan was not called upon to reply.
LoED Wood. — In this case there is no room for doubt.
Where the parties were settled before 1832, does not
seem clear, but it certainly was not in the parish of St
Ninians. In the year 1831, Wilson the former husband
died, leaving a widow and child, both of whom had then
an undoubted claim of relief against the parish in which
he was settled. In 1832, having married again, the
family, including the child, come to the parish of St
Ninians, where they lived till 1842 ; and in that period
acquired a settlement by means of an industrial residence.
It has been settled, since the case of Crieff, that a widow
218 CASES BEFORE THE HIGH COURT
jj?[°;^fg,j, may, by industrial residence, acquire a settlement for
^"°^- her child, just as a father may ; but in the case of a se-
I'riiT? ^'^^^ marriage, it seems altogether different. A settle-
'849. ment acquired by means of industrial residence, is alto-
Appeai. gether derivative to her. In truth, she seems to fall into
it, rather than to acquire it. There is no ground, there-
fore, for the child to claim relief against the parish in
which her stepfather has resided. Such residence would
not take away the child's right of relief against the
parish of the father's settlement, and I accordingly move
that the sentence of the Sheriff be affirmed.
The Lord Justice-Cleek. — I entirely concur. I as-
sume that at the death of Wilson he had a settlement
in Dumfries, against which parish his child also had a
right. It is quite clear, that no act of the mother could
destroy this right of the child, unless she was able to ac-
quire for it another settlement. The Crieff case was al-
together different. A widow stands in some respects in
the position of a father, but here the mother married
again. By that act her settlement was changed at
once. Suppose that the child became chargeable the
day after the marriage of her mother, could it be said
that she had thereby lost her right against the parish of
her father? or could it be pretended that she had, by her
mother's marriage, obtained a right against the parish to
which her father-in-law belonged ? The argument, that
the parish of St Ninians had gained by the industry of
the wife, was altogether futile, when pleaded as a ground
on which a settlement therein could be obtained for a
child by a former marriage, as the law could only regard
the husband in such a case.
The Appeal was refused, with expenses.
April 26.
1849.
AND CIRCUIT COURTS OF JUSTICIARY. 219
GLASGOW.
Jvtdge — The Lord Justice-Clerk,
P. E. Henderson, Appellant. — Monro.
AGAINST
M'^VuLAY & Co., Respondents. — D. Mackenzie.
Appeal. — Objection to the competency of an appeal sustained, iu
respect it was not lodged within ten days after judgment, disposing of
the merits and matter of expenses, although there was a subsequent
interlocutor in the case.
This action was instituted by the defenders M'Aulay & HOTderson
Co., provision merchants, Glasgow, against Thomas and "• ^'g"''*y
Peter E. Henderson for payment of an account ofTn
£12 : 12 : 8, incurred to the pursuers. Decree in absence April 26.
was obtained against both defenders, and extracted.-
1 ft Appeal.
Thereafter, on the petition of one of the defenders,
P. E. Henderson, he was reponed on consignation of the
previous expenses, and a litigation ensued between the
pursuers and P. E. Henderson, in regard to the liability
of the latter. In the meantime, the other defender,
Thomas Henderson, was charged under the decree ob-
tained against him, and the principal sum recovered from
him. On advising the proofs, the Sheriff-substitute
(Mr Skene) pronounced the following interlocutor :-^
' Glasffoio, %th November 1848. — Having resumed consideration of
' this process, in respect, while the pursuers' proof sufficiently instructs
' the defender Peter E. Henderson's liability for the whole sum sued
' for, it appears from the close of the said proof that the principal sum
' sued for has been recovered from the other defender ; finds the said
' Peter E. Henderson liable to the pursuers in payment of interest
' thereon merely, and finds him also liable to the pursuers in expenses,
' of which allows an account to be lodged, and remits the same to the
* auditor to tax and to report, and decerns.
' George Skene.'
220 CASES BEFORE THE HIGH COURT
No. 32. The defender reclaimed, and thereafter appealed to the
Henderson , , ,i • j. e
V. M'Auiay Sheriff, who adhered, with the variation on the point or
-^ °' expenses, that these were to be allowed subject to large
Aprif 26.' modification. The expenses were taxed and modified on
_J^^!_ the 14th of February 1849, by the Sheriff-substitute, to
Appeal, j^g ^j^.^ interlocutor was acquiesced in, and an extract
of the decree ordered. When the Sheriff-clerk was
making out the extract, it was found that the sum con-
signed by the defender when he was reponed had never
been uplifted, and a motion was lodged by the pursuers
for authority to receive this sum in payment pro tanio
of the modiiied expenses, which was granted on the 21st
February 1849.
An appeal was taken against the judgment at the
next Court of Justiciary, and the appeal was lodged and
intimated on the 8d of March, ten days after the last
interlocutor of 21st February 1849.
Monro, for the appellant, contended, that the final
interlocutor in the action was that of 21st February, and
that the appeal having been lodged within ten days after
that interlocutor was pronounced it was regular and com-
petent.
Mackenzie, for the respondent, objected to the com-
petency of the appeal, in respect that it was not lodged
within ten days of the final judgment or decree in the
cause. By the act 20th Geo. II. c. 43, § 34, an appeal
to the Circuit Court must be taken either at the time of
pronouncing ' final decree and sentence or judgment,'
or within ten days thereafter, by lodging the appeal in
the hands of the clerk of Court. So also, by the Act of
Sederunt of 12th July 1839, appeals are declared ' com-
' petent only after a final judgment has been pronounced,
' and the matter of expenses has been disposed of;' and
the appeal must be taken either at the time of pronoun-
cing such final judgment, or within ten days thereafter.
Now, hero the merits of the action wore disposed of by
the interlocutor of the Sheriff-depute adlicring to that
of the Shcriff-substituto of 8th November 1848, with
AND CIRCUIT COURTS OF JUSTICIARY. 221
the variation, that he held the pursuers entitled to ex- No. 32.
. , n 1 Henderson
penses, but subject to modmcation. That was the nnal ^i.M'Auiay.
judgment or decree on the merits, and the ' matter of ,
expenses was disposed of, and decree given therefor on ApSfse'.
the 14th February 1849. The appeal was not lodged ,
with the clerk of Court within ten days of this decree,
and therefore was incompetent, both under the act of
Parliament and act of Sederunt. The interlocutor of
the 24th February merely authorised the pursuers to
uplift the consigned sum, and to apply them towards
payment of the amount of the modified expenses, and
was neither the final judgment or decree on the merits,
nor the judgment disposing of the matter of expenses.
Held by the Lord Justice-Clerk — That, as by the
act of Parliament and act of Sederunt, the appeal must
be taken within ten days of the final judgment in the
cause, and of the decree disposing of the matter of ex-
penses ; and as the decree here disposing of the expenses
was that of the 14th February 1849, approving of the
auditor's report, modifying the expenses to £6, and de-
cerning therefor, the whole merits having been then dis-
posed of, and as the appeal was not taken within ten
days of such interlocutor, it was incompetent. The in-
terlocutor of the 21st February 1849 was a mere inter-
locutor following on the previous final judgment, and
caused by the defender having incurred an award by
being reponed against a decree in absence.
The appeal was dismissed.
Monro, for the appellant, moved that his Lordship
should modify the expenses.
Lord Justice-Clerk. — I do not in general modify
the expenses in an appeal, but allow the whole expenses
which have been incurred in consequence of the appeal,
subject to proper taxation. Some cases may occur in
which one can safely modify expenses. But the principle
on which I act is, that the successful party in the appeal,
whether appellant or respondent, should not lose in point
of expenses when he gains the appeal.
J 849.
Appeal.
222 CASES BEFORE THE HIGH COURT
Marshall, Appellant. — Monro.
AGAINST
Turner, Eespondent. — Logan.
Appeal— Caution.— Held, 1. That there is no statutory provision re-
quiring a certificate that caution has, been found in an appeal to the
Circuit Court. 2. Circumstances in which, on an allegation that
caution had not been found, the Court offered time to allow the
necessaiy evidence to be produced.
No. 33. This was an appeal from the Sheriff of Lanarkshire.
' Turner. ' On the appeal being called, it was objected by the re-
Giasgow. spondent, that there did not appear to have been any
1849. ' caution found, as required by the statute. It was usual
Appeal, to certify on the back of the appeal that caution had
been duly given; but not only was this certificate
wanting in this case, but there was no certificate of any
kind to shew that caution had been found.
Answered, for the appellant, that caution had in fact
been found, and that the appellant's agent was his
cautioner.
The Lord Justice-Cleek. — ^The statute does not con-
tain any directions as to the production of a certificate
in any form, it only directs caution to be found, which it
is alleged has been done in the present case. If, there-
fore, the respondent disputes this, the case must be
delayed, in order to afford the appellant time to produce
the necessary evidence of the facts. Prima facie, the
objection is not good, as it is very unlikely that the
Sheriff-clerk would have transmitted the appeal, if
caution had not been duly given.
Logan hereupon departed from the objection, and the
case proceeded.
AND CIKCUIT COURTS OP JUSTICIARY. 223
SOUTH CIRCUIT.
Spring, 1849.
DUMFRIES.
Present, ^P^^,'"-
Lonns Moncrieff and Cockburn.
Jane M'Kichbn ob, Chakteks — Cleghorn
AGAINST
Helen Mnm — Welsh.
Appeal — Innkeeper — Lien. — Held that an Innkeeper had a right to
detain the wearing apparel of a guest who neglected to pay his bill
when demanded, even though payment was refused on the ground that
the charges therein exceeded what had been agreed on.
This was an appeal from the Stewart of Kirkcud- No. 29.
bright, against a decision refusing to recognize a lien ». Muir.
claimed by the appellant, under the following circum- Dumfries,
stances : — ^The respondent's husband, who is a dancing- \u9.
master, having periodically given lessons in the village Appeal,
where the appellant lives and keeps an inn, was in the
habit of staying at her house, and had incurred a bill of
a few shillings, when he determined to give a ball to his
scholars, and for that purpose sent for his wife (the re-
spondent in this appeal), together with his daughter, to
assist at the entertainment. They accordingly came,
bringing with them no other clothes than those they
were wearing, save their ball dresses, and took up their
abode at the appellant's house, where they partook of
refreshments, and were furnished with a room in which
they dressed for the ball, and left their ordinary clothes
lying. On their return from the ball, and before leav-
ing, the husband of the respondent called for the bill,
but refused to pay the whole sum, as he alleged that cer-
tain items were charged higher than had been agreed
224 CASES BEFORE THE HIGH COURT
No. 29. on : whereupon the appellant detained the ordinary wear-
■a. Muir. ing apparel of the whole party, leaving them to go nome,
Dumfries, a distance of eight or nine miles, in their ball dresses.
^\u9^' The respondent thereupon presented a petition to the
AppeaL Stewart of Kirkcudbright, praying for restoration of her
wearing apparel, to which answers were given in, and a
proof afterwards allowed by the Stewart-substitute, as to
whether the respondent had any other ordinary wearing
apparel than those detained by the appellant on the oc-
casion in question. On advising the whole case, the
Stewart-substitute ordained the clothes to be delivered
up, founding his judgment on the fact that the respon-
dent had no other clothes in which to go home.
Against this judgment an appeal was taken to the
Circuit Court.
Cleghoen, for the Appellant, pleaded — It was un-
doubted law that an innkeeper had a right of retention
over the luggage of his guests, in security of the debts
incurred by them in that character, and accordingly, if
his bill was not settled, had a right to detain it. This
right was universal, extending to all possible luggage^
and any inconvenience alleged to arise to the respon-
dent in this case, only shewed the efficacy of the right of
retention in forcing a settlement. The proof allowed by
the Stewart-substitute was therefore quite irrelevant,
and his judgment ill founded.
Welsh, for the Respondent, answered — The right
claimed by the appellant amounted substantially to a
right to incarcerate within her inn such customers as re-
fused to pay any bill, however exorbitant ; for, to leave
persons no alternative but that of being either detained,
or walking home several miles in a rainy night in thin
shoes and light muslin dresses, and without bonnets, was.
equivalent to a power of incarceration. But here there
had not even been a refusal to pay the bill, but objec-
tion was made to certain charges, as being contrary to
express agreement.
AND CIRCUIT COURTS OF JUSTICIARY. 225
The respondent was entitled to prevail on another ^°-.2^-
ground, for the debt incurred was a debt of the hus- «. Muir.
band's, and therefore no separate property of the wife, Dumfries,
especially if that property was of a paraphernal character, ]849. "
as in the present case, could be retained in security Appeal.
for it.
Lord Cockburn. — We cannot hear you upon that
point. There is not a word about it in the judgment of
the Inferior Court.
The Court were of opinion that the innkeeper's right
of retention extended to articles of dress retained by
her from the respondent. They therefore altered the
judgment of the Stewart-substitute.
NORTH CIRCUIT.
ABERDEEN.
Present,
Lords Mackenzie and Medwyn. April 24.
1849.
Heb Majesty's Advocate — £>eas A.D.
AGAINST
Christian Duncan — Burnett.
Indictment — Eelevancy — Theft by HousEBREAKiNa.— Circum-
stances which were held sufficient to support a charge of theft by
housebreaking, although the pannel was not charged with using any
other violence than opening the attic door by means of false keys.
Christian Duncan was charged with Theft, by means No. 30.
Christian
of Housebreaking : Duncau.
Aberdeen.
In so far as, on the 14th day of October 1848, or on one or other April 24.
. . . 1849.
of the days of that month, or of September immediately preceding, or
November immediately following, you the said Christian Duncan did. House-
wickedly and feloniously, break into and enter an attic-room of a breaking.
dwelling-house situated in or near Long Acre, in or near Aberdeen,
226 CASES BEFORE THE HIGH COURT
No. 30. the said attic -room being then and now or lately possessed or occupied
*Duncan" ^^ James Reid, a baker, now or lately residing or lodging with Wil-
liam Largue, a spirit-dealer, now or lately residing in or near Hutcheon
'A'prU*24.' Street, in or near Aberdeen, by opening the lockfast door of the said
1849. attic-room by means of a false key or picklock ; and having thus, or
Theft by in some other way or by some means to the prosecutor unknown, ob-
House- tained entrance into the said attic -room, you the said Christian Duncan
breaking. ^.^^ ^^^^ ^^^ ^^^^^^ wickedly and feloniously, steal and theftuously
away take, a book titled ' The Self- Interpreting Bible, with an Evan-
' gelical Commentary by the late Rev. John Brown, Minister of the
' Gospel at Haddington,' or bearing some similar title, the property,
or in the lawful possession, of the said William Largue, or in the law-
ful possession of the said James Eeid ; as also, two hearth-rugs, two
crystal cruets, and a piece of wax-cloth, the property, or in the lawful
possession, of the said James Reid.
Burnett objected to the relevancy of the libel, in so
far as it charged housebreaking. It was necessary to
constitute the aggravation of housebreaking, that the
external security of the dwelling should be violated,
whilst the charge preferred against the pannel was not
only destitute of any allegation to that effect, but plainly
indicated that it was an inner door which she was accused
of having opened, on the security of which the inmates
could not be taken to have relied.
Deas. — It was set forth in the indictment, that Reid,
from whom the articles mentioned were taken, was a
lodger. The attic door was therefore to him an outer
door, as it formed the entrance to his habitation, and
constituted its only safeguard.
The Court sustained the relevancy of the indictment,
Lord Mackenzie remarking, that he had known a case
where the Court sustained an aggravation of housebreak-
ing, the party having broken out of a house which he
entered for the purpose of committing a theft.
The pannel afterwards pled guilty to the charge of
theft, without the aggravation of housebreaking.
In respect of which judicial confession, she was sen-
tenced to be transported for the period of seven years.
AND CIRCUIT COURTS OF JUSTICIARY. 227
Her Majesty's Advocate — Deas A.D.
AGAINST
Ann Ddthie — Burnett.
Indictment — Relevancy — Wanton and Malicious Mischief. —
Circumstances in which the Crown, on the recommendation of the
Court, withdrew a charge of "Wanton and Malicious Mischief, it
pearing that in fact the prisoner's attempt had been abortive.
No. 3K
Ann Duthie was charged with Malicious Mischief; "'^"w^"'
as also Wanton Mischief: Aberdeen.
April 24.
1849.
In so far as, (1.), on the night of the 8th, or morning of the 9th, — — — — -
day of October 1848, or on one or other of the days of that month, or Malicious
of September immediately preceding, or of November immediately fol- Mischief,
lowing, at or near the house situated in or near King Street, in or
near Aberdeen, then and now or lately occupied by John Duncan, then
and now or lately residing there, you the ^aid Ann Duthie did, wick-
edly, wantonly, and mischievously, throw two or more stones or other
hard missiles at one or more of the windows in the said house, with
the intent and for the purpose of breaking the glass of the said win-
dows, or of one or more of them, the property, or in the lawful pos-
session, of the said John Duncan ; and which stones, or one or more of
them, struck forcibly against a wire frame, which, unknown to you
the said Ann Duthie, had been recently before put up on the outside
of the glass of the said windows, or of one or more of them, for their
or its protection, and but for which protection the glass of the said
windows, or of one or more of them, would have been broken by the
stones thrown by you as aforesaid, or by one or more of them ; and
this yon the said Ann Duthie did, while the said windows were, and
were well known to you to be, watched by and under the charge of the
police authorities of Aberdeen, for the express purpose of preventing
you from breaking the said windows, as you had. previously done, or
from throwing stones or other hard missiles thereat, which you never-
theless did as aforesaid, in open defiance of the law and of the said
authorities : Likeas (2.), on the 9th day of October 1848, or on one
or other of the days of that mouth, or of September immediately pre-
ceding, or of November immediately following, at or near the house or
premises situated in or near Huxter Row, in or near Aberdeen, then
and now or lately occupied as the town-house of Aberdeen, you the
said Ann Duthie did, with your hand or hands, or by some other
means to the prosecutor unknown, wickedly, wantonly, maliciously,
and mischievously, break or destroy six, or thereby, panes of glass of
228 CASES BEFORE THE HIGH COURT
No. 3t. one of the windows of {he said last-mentioned house or premises, the
\.iin Dv
thie.
Ann Du- property, or in the lawful possession, of the Burgh of Aberdeen, or of
the Magistrates and Town Council of Aberdeen, for behoof of or as re-
April 24.' presenting the community of Aberdeen.
1849. '
Wantonand BuRNETT objected to the relevancj of the first charge
Mischief, contained in the indictment. It plainly appeared that
the attempts made by the pannel had proved abortive,
and consequently, could not found a relevant minor to a
charge of malicious or wanton mischief, when no mis-
chief in fact ensued. It was immaterial by what means,
or by whose precautions, her attempts had been defeated.
Deas. — But for the strong wire frame which protected
the window, the attempt would have succeeded, and the
law would regard her repeated attempts, if defeated, as
equivalent to the completed offence.
The Court having conferred. Lord Mackenzie recom-
mended that the first charge should be withdrawn. His
Lordship added, that in so doing the Court did not in-
tend to give any opinion on the validity of the objection,
much less to determine the point.
The pannel pleaded guilty to the second charge as
libelled.
In respect of which judicial confession, she was sen-
tenced to be imprisoned for one year. Lord Mackenzie
remarking, that, had there been any precedent to that
effect, he would have passed a sentence of transportation,
in consequence of the number of previous convictions,
nine in number, which had been proved against her.
AND CIRCUIT COURTS OF JUSTICIARY. 229
PERTH.
Present,
LonDs Mackenzie and Medwyn. May 2.
1849.
Her Majesty's Advocate — Deas, A.D.
AGAINST
John Elder Munnocn. — W. G. Dickson.
Indictment — Relevancy. — Objection to the indictment, that the
minor did not answer to the major, repelled.
John Elder Muedoch was charged with Wilfully, No. 34.
Unlawfully, and Maliciously, or the Wilfully, Unlawfully, Murdoch.
-and Recklessly, placing or rolling, and leaving a stone Perth.
upon or between or near the rails of a line of railway, 1349.
used for conveying passengers and goods by locomotive Wiifui
trains or caVriages, in a manner calculated and intended, ^™*8e-
or in a manner calculated to obstruct such trains or
carriages, and to endanger the lives or safety of the
passengers and other persons travelling thereby ; As also,
with contravention of the statute 3d and 4th Vict. c. 97
sect. 15.
In so par as, on the 4th day of March 1849, or on one or other of
the days of that month, or of February immediately preceding, or of
the bypast part of April immediately following, you the said John
Elder Murdoch did, wilfully, unlawfully, and maliciously, or wilfully,
unlawfully, and recklessly, place or roll and leave a large stone, weigh-
ing six hundredweight, or thereby, upon or between or near the rails
of the line of the railway, then and now or lately called the Edinburgh
and Northern Railway, then and now or lately the property, or in the
lawful possession, of the company incorporated by Act of Parliament,
under the name or title of the Edinburgh and Northern Railway
Company, or under some similar or other name or title, and at or near
that part of the said line of railway, situated, 226 yards, or thereby, to
the south-eastward of a bridge which crosses the said line of railway at
or near the farm of Braeside, in or near the parish of Abdie, and
county of Fife, then and now or lately occupied by Andrew Dingwall,
a farmer, then and now or lately residing there, and which bridge is
situated 1640 yards, or thereby, to the north-westward of the Oollessio
230 CASES BEFORE THE HIGH COURT
T ¥°-^^- Station of the said railway : and which line of railway was then used,
John Elder , „ , •' , „ . j
Murdoch, and was well known to you to he used, for conveying passengers and
Pgj^jj goods hy locomotive trains or carriages ; and this you did, in a manner
May 2. calculated, and by you intended, or in a manner calculated to obstrnct
'^*^' the said trains or carriages, and to endanger the lives or safety of the
j^''f"> passengers and other persons travelling thereby ; and more particularly
in a manner calculated, and by you intended, or in a manner calculated
to obstruct a locomotive train or set of carriages driven by locomotive
power, and carrying passengers, which you expected or had reason to
believe would shortly thereafter pass from Perth, or the direction of
Perth, to or towards Burntisland, along that part of the said line of
railway upon or near to which you had placed or rolled and left the
said stone as aforesaid ; and the said stone was so placed or rolled and
left by you as aforesaid, in such manner as to obstruct the said loco-
motive train or set of carriages ; and the said locomotive train or set of
carriages, having a number of passengers and other persons therein or
thereupon, did, shortly after the said stone had been so placed or rolled
and left by you as aforesaid, pass along that part of the said line of
railway upon or near to which you had so placed or rolled and left the
said stone, and the engine and carriages propelling and forming the
said locomotive train, or one or more of them, did come violently in
contact with the said stone, and were thereby obstructed, damaged,
and injured, and the passengers and others conveyed in or upon the said
engine and carriages were thereby put in bodily fear, and their lives
or safety endangered.
Dickson, for the pannel, objected to tlie relevancy of
the common law charges as libelled. The oifences set forth
in the major were both described as crimes of intention,
inasmuch as the word wilfully was contained in each,
whilst in the minor it was said, ' and this you did in a
' manner calculated, and by you intended, or in a man-
^ ner calculated to obstruct the said trains or carriages,
' and to endanger the lives or safety of the passengers
' and other persons travelling thereby,' &c. According
to the major, intention was essential to the commission
of the offence ; but in the minor, by libelling merely that
the act was ' calculated' in the alternative, the libel be-
came illogical and repugnant ; the law recognised a dif-
ference between crimes of recklessness and criminal
design (case of Macbean, 15th April 1847, Inverness,
Arkley, p. 262.) The Crown having charged intent
in the major, could not be allowed to set forth a charge
AND CIRCUIT COURTS OF JUSTICIARY. 231
from which design was excluded, which was manifestly ^o. 34^^^
the case in this indictment, from being placed in the Murdoch.
alternative to the intended act. PoJ^'tJ-
May 2.
Deas. — ^The libel was relevant, had it charged simply 1849.
the ' wilfully, unlawfully, and recklessly placing,' &c. wum
1 1 11 1 1 • • Damage.
a stone ' in a manner calculated to produce the injury
apprehended, it would doubtless have been sufficient,
and it was not the less so from that charge being inter-
woven with another relevant charge. The wilfiil and
reckless act was clearly an oifence, though a less heinous
one than the wilful and malicious.
The objection was repelled.
After evidence led, the Jury found the pannel guilty
of wilfully, unlawfully, and recklessly placing, or rolling
and leaving a stone, &c., and unanimously recommended
him to the mercy of the Court.
In respect of which verdict of Assize, the Court sen-
tenced the pannel to six months imprisonment.
HIGH COURT.
Present,
The Lord Justice-General, June 2.
1849.
The Lord Jdstice-Clerk,
Lords Mackenzie, Moncbeiff, Cockbubn, Wood, and Ivory.
William Telfer, Suspender — Moncreiff.
against
Richard John Moxey, Respondent — Nemes.
Suspension — Relevancy. — Held that it was sufficient, in a police
' complaint, to aver that the suspender had resisted or molested of-
ficers of police iu the execution of their duty, without setting forth
what was the particular duty they were engaged in discharging.
Q
232 CASES BEFORE THE HIGH COURT
No. 35. This was a suspension of a judgment of the Police
Moxey." Court of Edinburgh, arising out of the following circum-
High Court. StaUCOS :
"^ma: By the 136th section of the Edinburgh Police Act, 11th
Suspension, and 12th Victoria, cap. 113, all publicans are prohibited
from selling ale, beer, or exciseable liquors, after eleven
o'clock at night. The respondent had been in the habit
of causing officers from time to time to search the sus-
pender's premises after eleven at night, with the view of
ascertaining whether he allowed drinking in his establish-
ment after that hour. On the evening of Saturday, the
24th of March 1849, the suspender having heard a loud
knocking at the door between eleven and twelve^ inquired
who was there, and was answered " police." He then
unbarred his door, when two persons presented themr
selves in plain clothes, wearing shooting jackets, and one
of them with a cap on, and proceeded, without the exhi-
bition of any warrant, to search the suspender's premises.
In the course of their search, the suspender interfered,
and refused to allow them to proceed farther through
his house without an exhibition of some authority, where-
upon the persons went away.
Three days thereafter, a complaint was served, upon
the suspender, at the instance of the respondent, wherein
he was accused of ' resisting or molesting officers of po-
' lice in the execution of their duty.' On this complaint
evidence was adduced by both parties, in relation to the
facts of the case. On the 30th of March 1849, the pre-
siding Judge found the complaint proved against the
suspender by evidence adduced, and sentenced him to
pay a fine of Two Pounds sterling, or otherwise to be
imprisoned for a period of ten days. The complainer,
with a view to suspension, made consignation of the fine
in the hands of the clerk of the police, and presented
the present note of suspension.
The respondent, in his answers, set forth that the
complainer, when he refused to allow the officers to
search his premises, knew that they were policemen, and
anO circuit courts of justiciary. 233
also that no order, judgment, or conviction could be set No. 35.
aside, under the 107th section of the Edinburgh Police Moxey.'
Act. High Court.
MoNCEEiFF, for the Suspender. — The complaint was 1849."
bad, in respect it did not set forth that the police were suspension.
in the execution of their duty at the time the alleged
resistance offered by the complainer was made. It ought
also to have shewn what the particular duty was which
they professed to discharge. That would have enabled
the party to defend himself against the complaint, by
shewing that the police were not in the exercise of any
legitimate function. This was necessary to be averred,
as otherwise policemen might assume to enter any
private house without warrant, or other lawful cause,
and if they were resisted, might proceed to draw a com-
plaint, such as that now sought to be suspended, and
obtain conviction on a simple proof that he had been
resisted, although the resistance was justifiable in the cir-
cumstances.
Neaves, for the Respondent. — It was set forth in the
complaint, that the party well knew the persons whom
he resisted to be constables, and this must be held to
have been proved by the finding of the Judge. No spe-
cial warrant was necessary for the protection of a police-
man in the execution of his duty, and there was quite
sufficiency of averment here to sustain conviction ; and
cited the precedent of Devitt and Davidson, 12th June
1843, where a similar objection to that now taken was
repelled.^
^ ' Michael Devitt and Rose Davidson, both now or lately private
' soldiers in the 53d Regiment of Foot, and now or lately prisoners in
' the prison of Edinburgh, were charged with rioting and breach of the
' peace, as also assault : In so far as, on the 1st day of April 1843, or
' on one or other of the days of that month, or of March immediately
' preceding, or of May immediately following, on or near that part of
' the High Street of Edinburgh called the Castle Hill, or Castle Hill
' Street, you the said Michael Devitt and Rose Davidson did, both
' and each, or one or other of you, along with a number of evil dis-
' posed persons, to the prosecutor unknown, your companions armed
234 CASES BEFORE THE HIGH COURT
No. 3s. The Lord Justice-General. — The case quoted by Mr
Moxey? Neavos is sufficient authority for our refusing this sus-
High Court, pension, on the ground of any radical defect in the form
1U9.' of the complaint. And, on the merits, I see no reason
Suspension, whatsoever to interfere with the judgment, apart from
the section of the act prohibiting review. In truth, it
would put an end to the whole police business, were we
to sustain objections like this.
The other Judges concurred, and the Court accord-
ingly refused the suspension, with expenses.
John Keegan, S.S.C. — John Bicbabdson, W.S., Agents.
the whole, or greater part of you, with sticks or bludgeons, or other
similar weapons, wickedly and feloniously conduct yourselves in a
riotous and disorderly manner, assaulting and obstructing the patrols
of the police, and other officers of the law, when engaged in the dis-
charge of their duty on the public street, to the great terror and
alarm of the lieges, and in breach of the public peace ; and, in parti-
cular, you the said Michael Devitt and Rose Davidson did, both and
each, or one or other of you, then and there, in a riotous and disor-
derly manner, and in breach of the public peace, wickedly and felo-
niously attack and assault James M'Ginnes, now or lately day patrol
of the Edinburgh Police, and then engaged in the discharge of his
duty as an officer of the law, and did, with sticks, or bludgeons, or
some other similar weapons, or with your fists, knock or fell him to
the ground, and when he was lying there, did repeatedly kick him,
and did with the said weapons inflict many severe blows on his head,
and other parts of his person, by all which he was severely and
cruelly wounded, to the eflTusion of his blood, serious injury of his
person, and imminent danger of his life ; and you did, in like man-
ner, then and there, wickedly and feloniously attack and assault John
' Ross and James Simpson, both now or lately night patrols of the
' Edinburgh Police, and then engaged as officers of the law in the dis-
' charge of their duty, and did, in a riotous and disorderly manner, and
• in breach of the public peace, resist and obstruct them, and did strike
• or knock the said James Simpson to the ground, to the injury of his
■ person ; and all this you did, well knowing that the said James
' M'Ginnes, John Ross, and James Simpson were, all and each, or one
' or more of them, officers of the law, then and there engaged in the
' execution of their duty.'
AND CIRCUIT COURTS OF JUSTICIARY. 235
James Veitch and Others, Suspenders.— .4 . Anderson — G. H.
Pattison.
AGAINST
William Reid, Respondent — Deas.
Sdspension — Statute. — Held, that where a complaint in the Inferior
Court alleged contravention of bye-laws under a statute which were
invalid, it was no answer to a suspension to allege that the alleged
offence was penal at common law.
This was a Suspension of a conviction of the Burffh- No. 36.
^ ° Veitch and
Court of Jedburgh, whereby the complainers were fined in others v.
the sum of 10s. each, or failing instant payment, to be
detained in the Castle of Jedburgh for the space of six June 2.
days respectively, unless the said respective penalties be '- —
. 1 Suspension.
sooner paid.
The matter out of which the complaint arose was as
follows : — It appeared to have been the custom in Jed-
burgh to play a game at ball — a somewhat violent game,
which was played, not by throwing or kicking the ball, but
by two parties, one of whom was in possession of the ball,
pushing against each other, until one of the parties could
' succeed in carrying the ball to the goals respectively at
the other end of the town. This game was played as
usual on the 2d February 1849, previous to which the
Magistrates of the burgh, in consideration of the then
prevalence of cholera, had interdicted the playing of the
game. By the statute of 3d and 4th William IV., c. 46,
entituled ' an act to enable burghs in Scotland to establish
' a general system of police,' provision is made ' for the
' voluntary adoption of that act in said burghs respec-
' tively in manner pointed out, and in case of its adop-
' tion, full power and authority is given' to make all ne-
cessary rules relative to the watching, lighting of gas,
and otherwise paving and cleansing the streets, &c., and,
generally, for the due and effectual performance thereof,
for the prevention of infectious diseases, and putting
236 CASES BEFORE THE HIGH COURT
No. 36. down and removing such nuisances as may affect the
Veiteh and . , , , „
Others v. health of the mhabitants, &c.
- ^"^' The parties who were authorised under this act to carry
^juneT'it into execution, were denominated Commissioners of
.2^!!_ Police.
Suspension, rjij^jg ^^.j. ^^g ^^^^ adopted in the burgh of Jedburgh.
By the act 10th and 11th Vict., c. 39, it was, inter
alia, enacted, that where in a Royal Burgh intending to
adopt in whole or in part the act of William IV., it
should be lawful for the Magistrates of such burghs or
towns, without any previous application of householders,
as by the said act required, to convene the occupiers of pre-
mises of the yearly value of £10, in manner by the said
act directed, to consider and determine whether the pro-
visions of the said act should be wholly or in part adopt-
ed; and it was also enacted, that where the said act
should be in whole or in part adopted in any Royai
Burgh, all the powers and provisions so adopted, should,
instead of being put into execution by commissioners
elected as by said act is prescribed, be put into execution
by the Magistrates and Council of said burghs.
The burgh of Jedburgh is a Royal Burgh, and acting
under the powers of 10th and 11th Vict., c. 39, the
Magistrates convened a meeting of the inhabitants hav-
ing the statutory qualification, at which it was resolved
to adopt the said act.
It appeared that certain bye-laws were passed in pur-
suance thereof, which were embodied in a paper having
the following title : — ' By order of the Commissioners of
' Police, the following regulations shall be strictly ob-
' served as bye-laws within the bounds of police of the
' burgh of Jedburgh,' which included a prohibition of the
customary game of ball.
It was for an alleged violation of these bye-laws that
the complainers were summoned in the court below.
The complaint recited the act of Parliament 3d and 4th
William IV., c. 46 only, and libelled that the parties
had respectively contravened the bye-laws which had been
AND CIRCUIT COURTS OF JUSTICIARY. 237
-niade by the Commissioners of Police, acting under and y^°.^^;|j
by virtue of said statute. others «.
At the hearing before the Chief Magistrate, the par-— ^
ties objected to the relevancy of the libel, which objec- june 2. '
tion was repelled, and the sentence pronounced now 1^ —
, . , , ,1 Suspension.
sought to be suspended.
Pleaded for the Suspenders — ^The sentence was in-
valid, in respect that the first statute of William IV.
had never been acted upon in the burgh of Jedburgh ;
and, consequently, that there was no such persons as
Commissioners of Police entitled to make any bye-law
under that act ; the act of Victoria, which was adopted
in Jedburgh, having conferred the power upon the Ma-
gistrates and Town-Council only, consequently the bye-
law was bad, and as the substantial charge against the
complainers was a violation of this bye-law, and not of
any independent breach of peace, the conviction could
not be sustained.
Pleaded for the Respondents — ^The Magistrates were
eon officio Commissioners of Police at common law, as well
as under the statute ; and as the game sought to be pro-
hibited was eminently dangerous in the time of pestilence,
and was moreover an obstruction to the business of the
town, they had power to prevent the same by giving due
warning, and to punish a violation of their order.
The Lord Justice-Cleek. — The charge is one under
the statute. Nothing is said as to the violation of the
common law.
Deas. — All that was done was competent under the
general powers of police vested in the Magistrates and
Town-Council.
The LoED Justice-Cleek. — We are not here to con-
sider the general powers of the Magistrates and Town-
Council, but to examine the validity of a complaint un-
der a particular statute.
LoED Wood. — Under the act of Victoria, the parties
entitled to make bye-laws are Magistrates, and not Com-
missioners of Police. You libel a contravention of cer-
238 CASES BEFORE THE HIGH COURT
No. 36. tain bye-laws made by the Commissioners of Police, a
Veitch and j j mi i.
Others V. body who never existed in the burgh. That goes to the
Keid. ,
whole case.
High Court. . i • i u
June 2. Deas. — ^That was only a misnomer, which would not
1— vitiate a criminal complaint, especially as the parties
uspension. ^^^ euactcd the bye-laws were entitled, ea,' officio, to
exercise their functions as Commissioners of Police.
The LoED Justice-Clerk. — It is impossible not to
suspend in this case. It is expressly alleged on the face
of the complaint, that the parties enacting the bye^laws
were Commissioners of Police acting under the statute
of William IV., whereas that act was never adopted in
the burgh, except under the provisions of the act of
Victoria, which abolished the statutory functions of the
Commissioners of Police created by the former statute.
Whether or not they could have prohibited the game by
virtue of their common law powers, it is not necessary
to determine — perhaps they might, though I, for one,
should hesitate to encourage the abolition of an old and
customary game, which from time immemorial had been
enjoyed by the community.
The rest of the Court concurred, and the Note of Sus-
pension was accordingly passed, with expenses.
Charles Jameson, Suspender — Deas.
David Pilmeh, Respondent — Nea-ees.
Suspension — Informality. — Circumstances in which it was hehl,
that, where a man had been summarily apprehended without war-
Janie'aon D. ''^°* "'' ^^^^^ intimation of the charge against him before trial, the
Pilmer. conviction could not be sustained.
Hi,s;h Court.
June 2. This was a suspension on the part of Jameson, arising
: — out of the same transaction narrated in the case of
SuBpension-
Ritchie against Pilmer {ante, p. 142.)
AND CIRCUIT COURTS OF JUSTICIARY. 239
In addition to the circumstances referred to in the No. 37.
previous report, the suspender alleged, that ' while he piimer. '
' was assiduously discharging his duty in the vessel, his High Court.
' farther services were very speedily and abruptly inter- "848,
' rupted, and put an end to, by the respondent, Mr Pil- suspension.
' mer, as Superintendent of the Harbour Police, ordering
' a policeman, at the instigation, it is believed, of the
' ship's agent, Mr Jack, to carry off the complainer to
' Bridewell. This was immediately done, without the
' slightest explanation being made to the complainer, and
' without any warrant whatever against him being in
' existence. No accusation or charge even was at this
' time made against the complainer by any one.'
Deas. — The conviction could not be sustained, not only
on the ground of the irregular way in which Jameson
was apprehended, but also on the ground, that having
expected to have had the benefit of his master's evidence,
who had been called as a witness, and whose testimony
would have exonerated him, the Bailie deprived him of
that right by the wrongful proceedings against Ritchie.
Circumstances had prevented him from suspending
sooner, but he had presented his note the earliest mo-
ment he was able.
Neaves. — This suspension was too late, being many
months after the expiry of the sentence, and that undue
delay must be considered in dealing with the case.
The Lord Justice-Clerk. — We think he is entitled
to have his note of suspension entertained, in order to
get free of the conviction now standing against him.
Neaves. — The suspension by the Captain, on the
ground of the informality of the proceedings against him,
had no application. The Court sustained the objection
in his case, on the ground, that having been cited as a wit-
ness, he could not afterwards be summarily charged as a
pannel. Jameson had no interest to complain of the
proceedings adopted against Ritchie. Had he wished
Ritchie as an evidence, he should have moved the Court
to have the cases tried separately ; but no such motion
240 CASES BEFORE THE HIGH COURT
No. 37. was made at the trial, and it was too late to com-
Jameson 'O, „ . , 4. ■ 1
Piimer. plain of any injury that he sustamed irom tne tnal.
High Court, as, in the absence of any objection, it must be held that
"849.' he concurred in the course adopted. In respect of the
Suspension, apprehension, there was nothing incompetent in the way
that was effected. The general powers of the police to
apprehend a person, said to have stolen goods in his pos-
session, could not be doubted ; and it was quite enough
if a regular complaint was preferred against him at the
time of trial.
The Lord Justice-General. — I am decidedly of opi-
nion that there is nothing to warrant the procedure com-
plained of, which seems to me to be contrary to the first
principles of justice. The process is far too summary,
and seems as if intended to try a man without giving him
notice of the charge he is to answer. Having been ap-
prehended without a warrant over night, and consigned
to jail, he hears the charge read to him, for the first time,
when placed at the bar on the following morning, and
he is then deprived of the evidence of his Captain, by
the respondent putting both their names in the complaint.
I do not think this a case where any emergency arose,
calling for an extraordinary exercise of the powers of the
police. On the contrary, I think it utterly unjustifiable
to proceed to try a person on such a charge, without due
and proper notice of the offence intended to be charged
against him.
The Lord Justice-Clerk. — I am of the same opinion.
The Dundee Harbour Act requires, in summary cases,
that the procedure shall either commence by warrant or
by summons; and, according to the law of Scotland,
either of these instruments must bear the cause of appre-
hension or citation. There is no allegation, in this case,
that the suspender was about to escape, so as to render
it necessary to apprehend him, except in the regular
way ; and I am of opinion, that, in that respect, the pro-
cedure cannot be sustained ; and I am also farther of
opinion, that 'on the broad ground of natural justice we
AND CIRCUIT COURTS OF JUSTICIARY. 241
ought to suspend the present conviction. The depriving j^^°J^;
the man of the evidence of his Captain, which, they knew, PJimer.
would exonerate him from the charge, was a most dis- '^f^^J'^'^-
creditable proceeding, and entitles the suspender to our i849.
judgment. Suspension.
Lord Mackenzie. — I am not quite so clear as the
rest of the Court, but I concur in the judgment about to
be pronounced, on the ground that the whole proceedings
were too summary, and that the suspender had not suf-
ficient time or notice to prepare his defence.
LoEDS MoNCREiFF, CocKBURN, WooD, and Ivory con-
curred.
The Court accordingly suspended the charge, with
costs.
WoTHERSPooN and Mack — Lockhart, Hunter, and Whitehead, Agents.
Present,
The Lord Justice-Clerk,
Lords Wood and Ivory. "^"'y ^'
1849.
Her Majesty's Advocate — Deas A.D.
James Chisholm — W. H. Thomson.
Indictment — Theft — Falsehood, Fraud and Wilful Imposition
— Eelevanct. — Circumstances in which a cumulative charge of
falsehood, fraud, &c., together with theft, was sustained as relevant
on the same species facti.
James Chisholm was charged with Falsehood, Fraud, j";^^^-
and Wilful Imposition, as also Theft. chishoim.
High Court.
In so PAR AS, on the 1st day of January 1849, or on one or other of ig^g^"
the days of that month, or of Decemher immediately preceding, or of — —
February immediately following, on or near the farm of Sheriflfhall Fraud, &c.
242 CASES BEFORE THE HIGH COURT
No. 38. Mains, situated in or near the parish of Newton, and county of Edin-
Chisholm ^^^SK tlien and now or lately occupied by George Seton, then and
now or lately tenant of the said farm, and then and now or lately
^'julyT'' residing there, you the said James Ohisholm did, wilfully, wickedly,
1849.' falsely, fraudulently, and feloniously, represent and pretend to the
Falsehood, said George Seton that if he would agree to sell to you five, or
Fraud, &c. thereby, bolls of potatoes, to be delivered by him or by his servant on
the following day, at the shop or premises in or near Stockbridge, then
occupied by Mr Eobb, a victual -dealef, meaning thereby the shop or
premises then occupied by Walter Robb, then and now or lately a
victual-dealer in or near Baker's Place, Stockbridge, in or near Edin-
burgh, or meaning thereby the shop or premises then occupied by some
person of the name of Robb to the prosecutor unknown, you the said
James Chisholm would await the arrival of the said potatoes at the
said shop or premises; and pay the price thereof on delivery ; or yon
did make some other and similar false and fraudulent representation or
representations to the said George Seton ; and the said George Seton
was, by the false and fraudulent representation or representations made
by you to him as aforesaid, or part thereof, induced to agree to sell to
you five, or thereby, bolls of potatoes, at the price of 14s. sterling, or
thereby, per boll, and to send the same on the following day for delivery
at the shop or premises in or near Baker's Place aforesaid, then and
now or lately occupied by the said Walter Robb, under the charge of
James Denny, then and now or lately farm-servant to the said George
Seton, and then and now or lately residing at Sherifi'hall Mains afore-
said ; and the said James Denny having, by directions of the said
George Seton, accordingly, on the following day conveyed the foresaid
quantity of potatoes to Edinburgh, for the purpose of being delivered
as aforesaid, and of receiving payment of the price as aforesaid, and
you having joined the said James Denny at or near Newington, near
Edinburgh, while on his way to Edinburgh as aforesaid, you did prevail
upon the said James Denny to accompany you to the shop or premises
in or near Baker's Place aforesaid, then and now or lately occupied by
the said Walter Robb, and to the shop or premises situated in or near
Higli Street, in or near Edinburgh, then and now or lately occupied
by Thomas Hope, then and now or lately a grocer there, and to the
shop or premises situated in or near Huntly Street, in or near Edin-
burgh, then and now or lately occupied by Alexander Mitchell Dick, a
wine-merchant and grocer, then and now or lately residing there, and
to the shop or premises situated in or near India Place, in or near
Edinburgh, then and now or lately occupied by William Thomson, a
victual-dealer, then and now or lately residing there, or to one or more
of these places, or to some other place or places in or near Edinburgh
to the prosecutor unknown, and you did farther prevail upon the said
James Denny to deliver to the said Walter Robb, Thomas Hope,
Alexander Mitchell Dick, William Thomson, and others aforesaid, or
AND CIRCUIT COURTS OF JUSTICIARY. 243
to some of them, either for your behoof or for their own behoof, as No. 38.
alleged purchasers from you, or otherwise, the said five, or thereby r^^^^f
bolls of potatoes, in various quantities or proportions : and all this or
. .1. r -1 J xi. -J T -r. XI HighCourt.
part thereof, you so prevailed on the said James Denny to do, upon jj,iy 9_
your false and fraudulent representation and promise to him, that you 1"*9-
would, immediately after the said delivery of the said potatoes, pay to Falsehood,
him, for behoof of the said George Seton, the foresaid agreed-on price *™""> °'°"
thereof, which you wilfully, wickedly, and fraudulently failed to do,
and you did wickedly, fraudulently, and feloniously appropriate the
said potatoes, or part thereof, to your own uses and purposes ; and you
did, at or near the shop or premises in or near Baker's Place aforesaid,
and at or near the shop or premises in or near High Street aforesaid,
and at or near the shop or premises in or near Huntly Street aforesaid,
and at or near the shop or premises in or near India Place aforesaid,
all respectively occupied as aforesaid, or at or near one or more of
them, or at or near some place or places in or near Edinburgh to the
prosecutor unknown, wickedly and feloniously, steal and theftuously
away take, in various quantities or proportions as aforesaid, the fore-
said five, or thereby, bolls of potatoes, the property, or in the lawful
possession, of the said George Seton, or in the lawful possession of the
said James Denny ; And you the said James Chisholm have been pre-
viously convicted of falsehood, fraud, and wilful imposition, and you
have been previously convicted of theft.
Thomson objected to the relevancy of the indictment,
in respect that it charged the pannel with two distinct
crimes, whilst only one overt act was set forth. The
theft was nothing more than the successful completion
of the falsehood, fraud, and wilful imposition previously
libelled, the appropriation of the goods being set forth
as the substantive portion of such crime. Case of JRo-
bertson, 25th May 1835 ; Bell's Notes, p. 18.
Deas referred to the case of Grahame, Glasgow Christ-
mas Circuit 1847, where swindling and theft were charged
cumulatively on the same act, and which, although not
objected to by the prisoner, had been adverted upon, and
sustained as competent by the Court.-'
* ' Mabgaret Grahame, now or lately prisoner in the prison of
^ Glasgow, you are indicted and accused, at the instance of Andrew
' Rutherfurd, Esquire, Her Majesty's Advocate for Her Majesty's in-
' terest : That albeit, by the laws of this and of every other well-
' governed realm, Falsehood, Fraud, and Wilful Imposition, especially
244 CASES BEFORE THE HIGH COURT
No. 38. The Lord Justice-Clerk. — The indictment, in the
James . , .
Chishoim. case of Grahame, differs from the present in this respect,
High Court, that the taking possession of the goods was not twice
1849.' — — ^
Falsehood, ' when committed by a person who has been previously convicted
Fraud, &c. i thereof; As also. Theft, are crimes of a heinous nature, and severely
' punishable : Yet tjbub it is and of verity, that you the said Mar-
' garet Grahame are guilty of the said crime of falsehood, fraud, and
' and wilful imposition, aggravated as aforesaid, and of the said crime
' of theft, or of one or other of them, actor, or art and part : In so par
' AS (1.), upon the 24th day of July 1847, or on one or other of the
' days of that month, or of June immediately preceding, or of August
' immediately following, in or near the shop or warehouse situated in
' or near Buchanan Street, in or near Glasgow, then and now or lately
' occupied by Eobertson Buchanan Stewart and John MacDonald,
' then and now or lately carrying on business there as drapers, under
« the firm of Stewart and MacDonald, you the said Margaret Grahame
' did, wickedly and feloniously, falsely, fraudulently, and wilfully, re-
' present' to Benjamin "West, then and now or lately salesman to the said
' Stewart and Macdonald, or to some other person to the prosecutor
' unknown, acting on account of the said Stewart and MacDonald,
' that you had been sent by Miss Paton, residing at No. 8 Newton
' Place, in or near Glasgow, to look at, for her, some merinos or simi-
' lar goods, and to order the same to be sent to her at No. 8 Newton
' Place aforesaid, for inspection, with a view to purchase ; and the said
' Benjamin West, or other person to the prosecutor unknown, was
' thereby, or by some similar false and fraudulent representation made
' ''y yoii 3s aforesaid, imposed upon and induced to send to No. 8
' Newton Place aforesaid, then and now or lately occupied by William
' Patrick Paton, then and now or lately merchant in Glasgow, thirty-
' eight yards, or thereby, of merino, and lining for two dresses, or
' thereby, which you the said Margaret Grahame received and appro-
' priated as after libelled : Farther, time above libelled, at or near
' the house No. 8 Newtou Place aforesaid, you the said Margaret
' Grahame did, wickedly and feloniously, falsely, fraudulently, and
' wilfully, represent to Agnes Lyon, then and now or lately servant
' to the said William Patrick Paton, or in the said house, that a parcel
' containing the articles above libelled, which was then in the said
' house, had been left there by mistake, and that it was intended
' for a Mrs James Paton, or for some other person whom you then
' named, but whose name is to the prosecutor unknown ; and having
' thereby, or by some similar false and fraudulent representation, im-
' posed upon the said Agnes Lyon, and induced her to deliver to you
' the said parcel containing the articles above libelled, or part thereof,
' you did, then and there, wickedly and feloniously, steal and theftu-
AND CIRCUIT COURTS OF JUSTICIARY. 245
libelled as a crime, but was only charged as constituting No. 38.
the theft. The facts constituting the swindling being chishoim.
the various deceptions by which the prisoner had been HighCourt.
July 9.
— 1849.
ously away take, the said parcel containing the articles above libelled, Falsehood,
or part thereof, the property, or in the lawful possession, of the said ^''*"'^> *•=■
Robertson Buchanan Stewart and John MacDouald, or one or other of
them, or in the lawful possession of the said Agnes Lyon : Or other-
wise, time and place last above libelled, you the said Margaret
Grahame did, wickedly and feloniously, steal and theftuously away
take, a parcel, containing the articles above libelled, or part thereof,
the property, or in the lawful possession, of the said Robertson
Buchanan Stewart and John MacDonald, or one or other of them, or
in the lawful possession of the said Agnes Lyon : Likeas (2.), upon
the 7th day of August 1847, or on one or other of the days of that
month, or of July immediately preceding, or of September imme-
diately following, within or near the shop situated in or near Argyle
Street of Glasgow, then and now or lately occupied by John M'ln-
tosh, Ninian Scouller, and James Donaldson, then and now or lately
carrying on business there as drapers, under the firm of M'Intosh,
' Scouller, and Donaldson, you the said Margaret Grahame did, wick-
' edly and feloniously, fasely, fraudulently, and wilfully, represent to
the said Ninian Scouller, and to John Fulton, then and now or lately
salesman to the said M'Intosh, Scouller, and Donaldson, or to one
or other of them, or to some other person to the prosecutor unknown,
acting on account of the said M'Intosh, Scouller, and Donaldson,
that you had been sent by Mr John Young, residing at N. 1 Blythes-
wood Square, in or near Glasgow, or by one or more ladies, members
of his family, or residing in his house, to look at, for him or them,
some tartans or similar goods, and to order the same to be sent to
No. 1 Blytheswood Square aforesaid, for inspection, with a view to
• purchase ; and the said Ninian Scouller and John Fulton, or one or
other of them, or other person to the prosecutor unknown, was there-
by, or by some similar false and fraudulent representation made by
you as aforesaid, imposed upon and induced to send to the house
No. 1 Blytheswood Square aforesaid, then and now or lately occu-
pied by John Young, merchant, then and now or lately residing
there, twenty -four, or thereby, yards of tartan cloth, which you the
said Margaret Grahame received and appropriated as after libelled :
Farther, time above libelled, at or near the house No. 1 Blythes-
wood Square aforesaid, you the said Margaret Grahame did, wicked-
ly and feloniously, falsely, fraudulently, and wilfully, represent to
Margaret Struthers, or to Janet Cochrane, both then and now or
lately servants to the said John Young, or in the said house, that a
parcel containing the tartan cloth above libelled, which was then in
246 CASES BEFORE THE HIGH COURT
No. 38. enabled to eret the aroods into his possession. That case,
James o o i. • j- a
Chishoim. therefore, affords no precedent for the present mdict-
High Court, ment, and the obiection must therefore be sustained.
July 9. ■'
1849.
Falsehood, ' the said house, had been left there by mistake, and that it was in-
Fraud, &c. . tended for a Mr John Young, No. 21 George Square, or for some
' other person whom you then named, but whose name is to the prosecu-
' tor unknown ; and having thereby, or. by some similar false and fran-
' dulent representation, imposed upon the said Margaret Struthers or
' Janet Cochrane, and induced her to deliver to you the said parcel
' containing the tartan cloth above libelled, or part thereof, you did,
' then and there, wickedly and feloniously, steal and theftuously away
' take, the said parcel, containing the tartan cloth above libelled, or
' part thereof, the property,- or in the lawful possession, of the said
' John M'Intosh, Ninian ScouUer, and James Donaldson, or one or
' other of them, or in the lawful possession of the said Margaret Stru-
' thers and Janet Cochrane, or one or other of them : Or otherwise,
' time and place last above libelled, you the said Margaret Graharae
' did, wickedly and feloniously, steal and theftuously away take a
' parcel containing the said tartan cloth above libelled, or part thereof,
' the properly, or in the lawful possession, of the said John M'Intosh,
' Ninian ScouUer, and James Donaldson, or one or other of them, or
' in the lawful possession of the said Margaret Struthers and Janet
' Cochrane, or one or other of them : Likbas (3.), upon the 19th day
' of August 1847, or on one or other of the days of that month, or of
' July immediately preceding, or of September immediately following,
' within or near the shop situated in or near Argyle Street of Glasgow,
' then and now or lately occupied by John Handley, now or lately
' trunkmaker there, you the said Margaret Grahame did, wickedly
' and feloniously, falsely, fraudulently, and wilfully, represent to the
' said John Handley, or to David Lister, then and now or lately ap-
' prentice to the said John Handley, that you had been sent by Mr
' Campbell, No. 305 Saint Vincent Street, in or near Glasgow, to look
' at, for him, or to order some carpet or other bags to be sent to his
' house. No. 305 Saint Vincent Street aforesaid, for inspection, with a
' view to purchase ; and the said John Handley and David Lister, or
' one or other of them, were thereby, or by some similar false and
' fraudulent representation made by you as aforesaid, imposed upon
' and induced to send to No. 305 Saint Vincent Street aforesaid, then
' and now or lately occupied by John Campbell, merchant and ship-
' broker in Glasgow, a carpet bag, and a leather bag, which you the
' said Margaret Grahame received and appropriated as after libelled :
' Further, upon the 20th day of August 1847, or on one or other of
' the days of that month, or of July immediately preceding, or of Sep-
' tember immediately following, at or near the house No. 305 Saint
AND CIRCUIT COURTS OF JUSTICIARY. 247
Lords Wood and Ivory concurred. No- sb.
James
The charge of theft was then withdrawn. CMshoim.
Thomson then objected to the relevancy of the indict- HighCourt.
184.9.
Vincent Street aforesaid, you the said Margaret Grahame, did, ■wick- Falsehood,
edly and feloniously, falsely, fraudulently, and wilfully, represent to ™" '
Margaret Ferguson, then and now or lately servant to, and residing
■with, Sarah Jane Forbes or Campbell, widow, or in the said house,
that the bags above libelled, which were then in the house, had been
left there by mistake, and that they ■were intended for a Mr Robert
Campbell, or for some other person whom you then named, but whose
name is to tlie prosecutor unknown ; and having thereby, or by some
similar false and fraudulent representation, imposed upon the said
Margaret Ferguson, and induce her to deliver to you the said bags
above libelled, you did, then and there, wickedly and feloniously,
steal and theftuonsly away take the two bags above libelled, the
property, or in the lawful possession, of the said John Handley, or
in the lawful possession of the said Margaret Ferguson : Or other -
■ WISE, time and place last above libelled, you the said Margaret
' Grahame did, wickedly and feloniously, steal and theftuously away
' take the two bags above libelled, the property, or in the lawful pos-
' session, of the said John Handley, or in the lawful possession of the
' said Margaret Ferguson : Likbas (4.), upon the 21st day of August
' 1847, or on one or other of the days of that month, or of July im-
• mediately preceding, or of September immediately following, within
• or near the shop situated in or near Argyle Arcade, in or near Glas-
• gow, then and now or lately occupied by Andrew Watson, hosier
■ and glover there, you the said Margaret Grahame did, wickedly and
' feloniously, fasely, fraudulently, and wilfully, represent to Agnes
' Reid, then and now or lately shopwoman to the said Andrew Wat-
' son, or to some other person to the prosecutor unknown, acting on his
' account, that you had been sent by Mr Wingate, No. 141 Bath
' Street, in or near Glasgow, to look at, for him, some travelling-bags,
' and to order the same to be sent to him at No. 141 Bath Street afore-
' said for inspection, with a view to purchase ; and the said Agnes
' Reid, or other person to the prosecutor unknown, was thereby, or by
' some similar false and fraudulent representation made by you as
' aforesaid, imposed upon and induced to send to No. 141 Bath Street
' aforesaid, then and now or lately occupied by Andrew Wingate, then
' and now or lately merchant in Glasgow, three, or thereby, travelling-
' bags, or to deliver the same to Ann M'Intosh, then and now or lately
' in his service as a message-girl, with instructions to carry the same
' to No. 141 Bath Street aforesaid; and you the said Margaret
' Grahame did receive and appropriate the same as after libelled:
' Farther, time last above libelled, at or near the house No. 141
248 CASES BEFORE THE HIGH COURT
No. 38. raent, in so far as it charged swindling, in respect that it
chishoim. did not contain either a statement that the prisoner as-
High court, sumed a false character, whereby he had obtained pos-
July 9.
1849. ■
Falsehood, ' Bath Street aforesaid, you the said Margaret Grahame did, wickedly
Fraud, &o. < ^nj feloniously, falsely, fraudulently, and wilfully, represent to the
' said Ann M'lntosh, who was then in thepossession of the bags above
' libelled, which had been delivered to her as aforesaid, that the said
' Andrew Wingate required the same to be taken to his oflSce situated
' in or near Queen Street, in or near Glasgow ; and the said Ann
' M'lntosh, being thereby imposed upon and induced to accompany
• you into Saint Vincent Lane, in or near Glasgow, or into a close in
' the neighbourhood thereof, you did, then and there, deceive and im-
' pose upon her, and induce her to deliver the said bags to you, by
' falsely, fraudulently, and wilfully, stating or representing to her,
' that you would yourself carry the same to the said Andrew Wingate
' at his office aforesaid, and you did, then and there, receive and ap-
' propriate, and did, wickedly and feloniously, steal and theftnously
' away take, the three travelling-bags above libelled, the property, or
' in the lawful possession, of the said Andrew "Watson, or in the law-
' ful possession of the said Ann M'lntosh : Or otherwise, time last
' above libelled, and in or near Saint Vincent Lane aforesaid, or in
' or near a close in the neighbourhood thereof, you the said Margaret
' Grahame did, wickedly and feloniously, steal and theftuously away
' take the three travelling bags above libelled, the property, or in the
' lawful possession, of the said Andrew Watson, or in the lawful pos-
' session of the said Ann M'lntosh : Likbas (5.), upon the 6th day of
' September 1847, or on one or other of the days of that month, or of
' August immediately preceding, or of October immediately following,
' within or near the shop situated in Argyle Street of Glasgow, then
' and now or lately occupied by Robert Forrester senior, Thomas
' M'Micken, and Robert Forrester junior, then and now or lately car-
' rying on business there as drapers, under the firm of Forresters and
' Company, you the said Margaret Grahame did, wickedly and feloni-
' ously, falsely, fraudulently, and wilfully, represent to Thomas Mor-
' ton, then and now or lately salesman to the said Forrester and Com-
' pany, or to Thomas M'Miken, then and now or lately partner of the
' said firm, or to some other person to the prosecutor unknown, acting
' on their account, that you had been sent by Mrs Smith, residing at
' No. 163 West George Street, in or near Glasgow, to look at, for her,
' some plaids, shawls, and ribbons, or similar goods, and to order the
' same to be sent to her, at No. 163 West George Street aforesaid,
' for inspection, with a view to purchase ; and the said Thomas Mor-
' ton or Thomas M'Miken, or other person to the prosecutor unknown,
' was thereby, or by some similar false and fraudulent representation
AND CIRCUIT DOUBTS OP JUSTICIARY. 249
session of the goods, or that he had had, from the begin- No^^^s.
ning of the transaction, a distinct intention of not paying Chishoim.
for them. There were no data, from which it could be High court.
July 9.
'■ 1849.
made by you as aforesaid, imposed upon and induced to send to Falsehood,
No. 163 West George Street aforesaid, then and now or lately oc- ''*" '
cupied by Isabella Ewing or Smith, widow of the deceased Archibald
Smith of Jordanhill, three, or thereby, woollen plaids, one woollen
shawl, and thirty-two yards, or thereby, of ribbon, which you the
said Margaret Grahame received and appropriated as after libelled :
Farther, time above libelled, at or near the house situated at No.
183 "West George Street aforesaid, you the said Margaret Grahame
did, wickedly and feloniously, falsely, fraudulently, and wilfully,
represent to Ann Maltman or Cecilia Dawson, both then and now
or lately servants to, and residing with, the said Isabella Ewing or
Smith, that a parcel containing the articles last above libelled, which
was then in the said house, had been left there by mistake, and that
it was intended for some other person whom you then named, but
whose name is to the prosecutor unknown ; and having thereby, or
by some similar false and fraudulent representation, imposed upon
the said Ann Maltman or Cecilia Dawson, and induced her to deliver
to you the said parcel containing the articles above libelled, or part
thereof, you did, then and there, wickedly and feloniously, steal and
theftuously away take the said parcel containing the articles last
above libelled, or part thereof, the property, or in the lawful posses-
sion, of the said Robert Forrester senior, Thomas M'Micken, and
Robert Forrester junior, or one or other of them, or in the lawful
possession of the said Ann Maltman and Cecilia Dawson, or one or
other of them : Or otherwise, time and place last above libelled,
you the said Margaret Grahame did, wickedly and feloniously, steal
and theftuously away take, a parcel, containing the articles last
above libelled, or part thereof, the property, or in the lawful posses-
sion, of the said Robert Forrester senior, Thomas M'Micken, and
Robert Forrester junior, or one or other of them, or in the lawful
possession of the said Ann Maltman and Cecilia Dawson, or one or
other of them : Likeas (6.), upon the 20th day of September 1847,
or one or other of the days of that month, or of August immediately
preceding, or of October immediately following, within or near the
shop situated in or near Buchanan Street, in or near Glasgow, then
and now or lately occupied by Andrew Ruiherglen, bookseller, and
stationer there, you the said Margaret Grahame did, wickedly and
feloniously, fasely, fraudulently, and wilfully, represent to the said
Andrew Rntherglen, or to Robert Laird, then and now or lately
shopman to the said Andrew Rutherglen, that you had been sent by
your master, Mr William Corbet, No. 25 Bath Street, in or near
250
CASES BEFORE THE HIGH COURT
No. 38.
James
Chisholm.
High Court,
July 9.
1849.
Falsehood,
Fraud, &c.
inferred that he had committed any crime, all that it
amounted to being, that he had not paid a civil debt.
The Court recommended the libel to be amended, by
the insertion of a statement, that the pursuer had entered
upon the transaction with the intention of not paying
for the goods, if the facts would warrant such a charge,
and intimated that otherwise they would sustain the ob-;
jection.
The Advocate-Depute thereupon withdrew the libel.
Glasgow, to looli at some Bibles, and order the same to be sent to
him at No. 25 Bath Street aforesaid, for inspection, with a view to
purchase the same ; and the said Andrew Rutherglen or Robert
Laird was thereby, or by some similar false and fraudulent repre-
sentation made by you as aforesaid, imposed upon and induced to send
to No. 25 Bath Street aforesaid, then and now or lately occupied by
William Corbet, now or lately powerloom cloth-manufacturer, six,
or thereby, copies of the Bible, each copy consisting of two volumes,
or thereby, which you the said Margaret Grahame received and ap-
propriated as after libelled : Farther, time above libelled, at or
near the house No. 25 Bath Street aforesaid, you the said Margaret
Grahame did, wickedly and feloniously, falsely, fraudulently, and
wilfully, represent to Ann Syme and Christina Stewart, or one or
other of them, both then and now or lately servants to the said William
Corbet, or in the said house, that the Bibles above libelled, which
were then in the said house, had been left there by mistake, and that
it was intended for some person in Regent Street, or elsewhere in or
near Glasgow, to the prosecutor unknown ; and having thereby, or
by some similar false and fraudulent representation, imposed upon
the said Ann Syme and Christina Stewart, or onfr or other of them,
and induced them, or one or other of them, to deliver to you the
Bibles above libelled, or part thereof, you did, then and there, wick-
edly and feloniously, steal and theftuously away take the Bibles
above libelled, or part thereof, the property, or in the lawful posses-
sion, of the said Andrew Rutherglen, or in the lawful possession of
the said Ann Syme and Christina Stewart, or one or other of them :
Or OTHERWISE, time and place last above libelled, you the said Mar-
garet Grahame did, wicked and feloniously, steal and theftuously
away take the Bibles above libelled, or part thereof, the property, or
in the lawful possession, of the said Andrew Rutherglen, or in the
lawful possession of the said Ann Syme or Christina Stewart, or one
or other of them.'
AND CIRCUIT COURTS OF JUSTICIARY. 251
Present as before.
The pannel was again qharged on the following No. 20
amended libel, charging — Chishoim.
High Court.
Your inteutioa truly being all along fraudulently to appropriate the ig49_ '
said potatoes to your own uses and purposes when obtained, without _, , r
making payment for the same ; and all this or part thereof, you so pre- Fraud, &o.
vailed on the said James Denny to do, upon your false and fraudulent
representation and promise to him, which you never at any time in-
tended to fulfil, that you would, immediately after the said delivery of
the said potatoes, pay to him, for behoof of the said George Seton, the
foresaid agreed-on price thereof, which you wilfully, wickedly, and
fraudulently failed to do ; and you did appropriate the said potatoes,
or part thereof, to your own uses and purposes, as after libelled.
After discussion, the Court sustained the amendment
of the libel, it being framed after the model of the
case of Grahame, Lord Ivory, however, stating that
he entertained great doubt as to the competency of
charging what was substantially one act, cumulatively as
two distinct crimes. The other Judges also observed,
that although not incompetent, the more seldom this
was done the better.
Thomson then objected to the relevancy of the charge
of theft, in respect that although fraudulent representa-
tions were charged to have been made by the pannel,
yet a regular contract of sale was set out in the indict-
ment, under which the prisoner had obtained possession
of the goods, consequently there had been a voluntary
transference of the goods to him from the former owner.
The charge of theft by persons appropriating goods al-
ready in their own possession (as servants, porters, hirers
of horses, &c.) had been held relevant, on the theory
that the goods were still constructively in the possession
of their real owners, for whom the parties accused of
stealing them were trustees or custodiers. Here there
was no room for any such theory, as the actual property
in the goods had passed under a regular contract.
252 CASES BEFORE THE HIGH COURT
No. 38. Deas. — The property must be held not to have been
ChiXoto. actually transferred, inasmuch as the bargain, as stated
High Court, in the indictment, was only conditional, on payment
J 849. ' being made simul et semel with the delivery.
Falsehood, The CouET, after consideration, repelled the objection
^'*"'^'*"- on this ground.
The charge of theft having been withdrawn, the pri-
soner pled Guilty to the charge of swindling.
In respect of which judicial confession, the pannel
James Chisholm was sentenced to be imprisoned for the
period of fifteen months.
Present,
The Lord Justice-Clerk,
July 25.
Lords Mackenzie and Cockburn.
Her Majesty's Advocate — Maitland Sol.-Gen. — Deaa A.D.
AGAINST
Agnes Chambers or M'Queen and Helen Henderson —
W. G. Dickson.
Trial. — Circumstances in which, on occasion of the illness of one
pannel, the Court continued the case till a subsequent day, as against
both herself and another party charged as an accomplice.
No. 39. Agnes Chambers or M'Queen and Helen Hender-
chambers SON Were charged with Robbery ; as also Theft :
and Helen
! In so PAR AS, on the morning of the 26th day of June 1849, or on
H^Sh Court, one or other of the days of that month, or of May immediately pre-
1 849. ' ceding, or of the bypast part of July immediately following, in or near
Robbery or ^^^^ Horse Close, otherwise called Boyd's Close, in or near Canon-
Theft, gate aforesaid, you the said Agnes Chambers or M'Queen and Helen
Henderson did, both and each, or one and other of you, wickedly and
feloniously, attack and assault Alexander Wilkie, a cart and wheel
Wright, then and now or lately residing with Angus M'Donald, a gar-
AND CIRCUIT COURTS OF JUSTICIARY. 253
dener, then and now or lately residing at or near Davidson's Mains, in No. 39.
or near the parish of Cramond, and county of Edinburgh, and did rjufi™™
seize hold of him, and did violently push or force hira within or near and Helen
to the said close, and did struggle with him, and did tear his vest, or Henderson.
part thereof, and did by force or violence take from his pocket or per- High Court,
son, and did rob hira of, one shilling and sixpence, or thereby, in silver [849. '
money, and a penny, or thereby, in copper money, the property, or in ^TTT
the lawful possession, of the said Alexander Wilkie : Or otherwise, Theft,
time above libelled, in or near White Horse Close, otherwise called
Boyd's Close, aforesaid, in or near Canongate aforesaid, you the said
Agnes Chambers or M'Queen and Helen Henderson did, both and
each, or one or other of you, wickedly and feloniously, steal and theft-
uously away take, from or near the pocket or person of the said Alex-
ander Wilkie, the silver and copper money above libelled, or part
thereof, the property, or in the lawful possession, of the said Alexan-
der Wilkie.
The pannels having respectively pleaded not guilty to
the charges preferred against them, and been remitted
to the knowledge of an assize, after the jury had been
sworn, and when the examination of the first witness
was commencing, the pannel M'Queen was taken unwell,
and required to be removed from Court. The police
surgeon having been directed by the Court to examine
her, reported on oath, that although sufficiently recovered
to return to the dock without injury to her health, she
w^as not in so collected a state as to be able to suggest
questions to her counsel, or otherwise to defend herself
against the charge.
Under these circumstances the Court refused to allow
the trial to proceed as regarded hej. Some difficulty
was thereupon expressed by the Crown counsel as to the
effect of this contingency upon the case of the other
prisoner, as they wished both to be tried together : in
respect of which, the Lord Justice-Clerk said, that the
Court had no doubt that the trial might be delayed in
the case of both prisoners, if the Crown considered it
expedient the cases should not be separated.
The Solicitor-General slated, that it was very de-
sirable that the pannels should be tried together ; where-
254 CASES BEFORE THE HIGH COURT
No. 39. upon the Court continued the diet against both until the
Chtmbers next day, and the jury impannelled were discharged.
and Helen
Henderson.
Highconrt. On the following day both pannels were tried before
"^184^ ■ another jury from the same list of assize, and both con-
i^iiii^r dieted of robbery.
Theft.
In respect of which verdict of assize, the said Agnes
Chambers or M 'Queen and Helen Henderson were sen-
tenced to be transported for seven years.
Present,
July 25. The Lord Justice-Cleuk.
1849.
Lords Mackenzie and Cockburn.
Her Majesty's Advocate — T. Maitland Sol.-Gen. — Deas A.D.
AGAINST
James Hall, John Howie, and John Stevenson — Pattison and
Burnett.
1. In a charge of Falsehood and Fraud, particularly the fraudulently
' and feloniously obtaining the goods of others upon false pretences
' and appropriating the same, without paying, or intending to pay
' therefor :' Held, that it was not necessary to allege that the pannel
assumed any false character, or that he used any other false pretence
than that of undertakipg to make a cash payment of the price of the
goods, ' he fraudulently and feloniously intending, nevertheless, that
' the said price should not be paid, and that he should appropriate
' the said goods to his own uses and purposes, without payment
' being made therefor ;' and having so appropriated them.
2. A party had used, to a very small extent, the firm of ' J. Stevenson
and Co.,' in Glasgow, where he had attempted to carry on business ;
he was not in business anywhere else ; he fraudulently adhibited the
signature ' J. Stevenson and Co.,' as acceptors to a bill for £200,
dated at Manchester, in order that the bill might be used and uttered
as a bill accepted by a Manchester firm, and the bill was so used
and uttered ; there was no such Manchester firm : Held to be a for-
gery.
AND CIRCUIT COURTS OP JUSTICIARY. 255
James Hall, John Howie, and John Stevenson ^ No. 49.
James Hall
were charged on criminal letters, That albeit, by the laws & othera.
of this and of every other well-governed realm, Falsehood ^f^^^^'^-
and Fraud, particularly the fraudulently and feloniously i849.
obtaining the goods of others upon false pretences, and |^'^^J"'°'|,'
appropriating the same, without paying or intending to
pay therefor ; as also. Forgery ; as also, the wickedly and
feloniously Using and Uttering, as genuine, any Forged
Promissory-Note or other Writing, having thereon any
forged subscription, knowing the same to be forged, are
crimes of an heinous nature, and severely punishable :
Yet true it is and op verity, that the said James Hall and John
Howie are, both and each, or one or other of them, guilty of the said
crimes, or of one or more of them ; and the said John Stevenson is
guilty of the said crimes of forgery and uttering, or one or other of
them, actors or actor, or art and part: In so far as (1.), the said
Jame& Hall having formed a fraudulent and felonious purpose of ob-
taining the goods of others upon false pretences, and appropriating the
same to his own uses and purposes, without paying or intending to pay
therefor, did, in prosecution of the said fraudulent and felonious pur-
pose, on or about the 23d day of May J 848, call at the sale-room or
premises situated in or near Exchange Square, Glasgow, then and now
or lately occupied by Lewis Park and Charles Park, or one or other
of them, carrying on business under the firm of Lewis and Charles
Park, sewed muslin manufacturers there, and did request the said
Lewis Park and Charles Park, or one or other of them, to sell goods
to the amount of £300 sterling, or other considerable amount, to the
order of him the said James Hall, or of the mercantile company or firm
of Henry Hall and Company, for whom the said James Hall repre-
sented that he was acting, and did request the said Lewis Park and
Charles Park, or one or other of them, to send the said goods to certain
premises in or near Buchanan Court, Buchanan Street of Glasgow, as
being the premises occupied by him, or by the said Henry Hall and
Company ; and in order to induce the said Lewis Park and Charles
Park, or one or other of them, to sell the said goods, and to send the
same to the premises in Buchanan Court as aforesaid, the said James
Hall did, on or about the 23d day of May 1848, or on one or other of
the days of the said month of May, or of April immediately preceding,
or of June immediately following, and in or near the sale-room or pre-
mises situated in or near Exchange Square aforesaid, falsely, fraudu-
lently, and feloniously pretend and agree with the said Lewis Park
and Charles Park, or one or other of them, or cause it to be understood
and relied on as between him and them, or one or other of them, that
256 CASES BEFORE THE HIGH COURT
No. iO. the price of the said goods was to be paid for either as in cash transac-
James Hall jj^^^ ^j. ^^ aelivery of the goods, he the said James Hall fraudulently
— and feloniously intending nevertheless that the said price eboulrt not
^jf]^2si^- be paid, and that he should appropriate the said goods to his own uses
1849. and purposes, without payment being made therefor; and the said
Falsehood, Lewis Park and Charles Park, or one or other of them, being induced
Fraud, &c. i,y ^he said false and fraudulent pretence, did then and there sell goods
to the said James Hall, consisting of sewed collars or similar goods, to
the value of £93, 12s. sterling, or thereby, conform to invoice dated
23d May 3 848, contained in an inventory hereunto annexed, and did,
on the same day, or within one or two days thereafter, send the said
goods to the premises in or near Buchanan Court aforesaid, to the ad-
dress of the said Henry Hall and Company, or of the said James Hall ;
and the said James Hall feloniously appropriated the said goods to his
own uses and purposes ; and no part of the price of the said goods has
been paid to the said Lewis Park and Charles Park, or either of them ;
and the said Lewis Park and Charles Park, or one or other of them,
have been thereby falsely and feloniously cozened and defrauded by
the said James Hall : Likeas (2.), the said James Hall and John
Howie having, both and each, or one or other of them, formed a frau-
dulent and felonious purpose of obtaining the goods of others upon
false pretences, and appropriating the same to their own uses and pur-
poses, without paying or intending to pay therefor, did, both and each,
or one or other of them, in prosecution of said fraudulent and felonious
purpose, on various occasions, in the months of November and Decem-
ber 1848, call at the premises or warehouse situated in or near Priory
Lane, of Dunfermline, then and now or lately occupied by Erskine
Beveridge, then and now or lately manufacturer in Dunfermline, and
give orders, and did also transmit written orders, to the said Erskine
Beveridge, for goods to be sent to them, the said James Hall and John
Howie, or one or other of them, at Glasgow, to the address of J. and
J. Hall, or J. and J. Hall and Co., or to some similar address ; and in
order to induce the said Erskine Beveridge to send his goods to them,
or one or other of them as aforesaid, the said James Hall, and John
Howie, as acting with or on behalf of the said James Hall, on various
occasions, in the months of November and December foresaid, more
particularly, the said James Hall, on or about both and each or one or
other of the 9th day of November and the 11th day of December fore-
said, and the said John Howie, on or about both and each or one or
other of the 30th day of November and the 20th day of December
foresaid, or the said James Hall and John Howie respectively, on other
days in the said months of November and December, the particular
days being to the prosecutor unknown, and at or near the premises or
warehouse aforesaid, occupied by the said Erskine Beveridge, and at
or near the inn commonly called Hutton's Inn, situated in or near
Bridge Street of Dunfermline, or at one or other of said places, did,
AND CIRCUIT COURTS OF JUSTICIARY. 257
both and each, or one or other of them, falsely, fraudulently, and felo- No. 40.^^^
niously, represent and pretend to the said Erskine Beveridge and to ^ others.
Henry Meldrum, then and now or lately salesman to the said Erskine ^J^T^^^^
Beveridge, or to one or other of them, that the said James Hall was juiy 25.
one of the Halls of New York, or was Mr Hall of New York, in the ^^^^-
United States of America ; and that he was a partner of, or agent for, Falsehood,
three mercantile firms or companies, one at New York aforesaid, one ™"''
at Manchester, and one at Glasgow, whereas it was well known to
both and each, or chie or other of the said James Hall and John Howie,
that the said James Hall was not one of the Halls of New York, or
Mr Hall of New York aforesaid, and that he was not a partner of, or
agent for, three mercantile firms or companies, one at New York, one
at Manchester, and one at Glasgow aforesaid ; and in order, farther,
to induce the said Erskine Beveridge and Henry Meldrum, or one or
other of them, to send such goods as they the said James Hall and
John Howie, or one or other of them, should order, the said James
Hall and John Howie did, both and each, or one or other of them,
always pretend and agree with the said Erskine Beveridge and Henry
Meldrum, or one or other of them, or cause it to be understood and
relied on as between them the said James Hall and John Howie, or
one or other of them, on the one part, and the said Erskine Beveridge
and Henry Meldrum, or one or other of them, on the other part, that
the price of the said goods when sent was to be paid for either as in
cash transactions, or on delivery of the goods ; which said last-men-
tioned pretence, on the part of the said James Hall and John Howie,
or one or other of them, was likewise false and fraudulent, they felo-
niously intending, nevertheless, that the price of said goods shonld not
be paid, and that the said goods should be appropriated to the uses
and purposes of them, or one or other of them, without payment being
made therefor, or, at least, without payment being made except for a
comparatively small amount of said goods at the commencement of
their dealings with the said Erskine Beveridge and Henry Meldrum,
or one or other of them ; and by the foresaid or similar false and frau-
dulent representations and pretences, or part thereof, the said Erskine
Beveridge and Henry Meldrum, or one or other of them, were induced
to despatch and send, and did despatch and send, linen or other goods
to Glasgow, to the said James Hall and John Howie, or one or other
of them as aforesaid, to the address aforesaid, on various occasions in
the month of December aforesaid ; more particularly (1st), on or about
the 12th day of December foresaid, the said Erskine Beveridge and
Henry Meldrum, or one or other of them, so despatched from Dun-
fermline and sent to Glasgow, to the said James Hall and John Howie,
or one or other of them, linen or other goods, conform to invoice of
said last-mentioned date, contained in Inventory hereunto annexed,
and amounting in value to the sum of £42 : 3 : 8^ sterling, or thereby ;
(2d), on or about the 13th day of December foresaid, the said Erskine
Beveridge and Henry Meldrum, or one or other of them, so despatched
258 CASES BEFORE THE HIGH COURT
No. 40. from Dunfermline and sent to Glasgow, to the said James Hall and
"'ft'oTh^s!' John Howie, or one or other of them, linen or other goods, conform t&
-: invoice of said last-mentioned date, contained in Inventory hereunto
July 26^. ' annexed, and amounting in value to the sum of £64 : 0 : 1 sterling, or
}^^"_ thereby; (3d), on or about the 21st day of December foresaid, the said
Falsehood, Erskine Beveridge and Henry Meldrum, or one or other of them, so
Fraud, &c. despatched from Dunfermline and sent to Glasgow to the said James
Hall and John Howie, or one or other of them, linen or other goods,
conform to invoice of said last -mentioned date, contained in Inventory
hereunto annexed, and amounting in value to the sum of £64 : 15 : 2
sterling, or thereby ; and (4th), on or about the 27th day of December
foresaid, the said Erskine Beveridge and Henry Meldrum, or one or
other of them, so despatched from Dunfermline and sent to Glasgow
to the said James Hall and John Howie, or one or other of them, linen
or other goods, conform to invoice of said last-mentioned date, contained
in Inventory hereunto annexed, amounting in value to the sum of
£22 : 5 : 11 sterling, or thereby ; all which foresaid goods particularly
above specified, or part thereof, were received in or near Glasgow by.
the said James Hall and John Howie, or one or other of them, and
were appropriated by them, or one or other of them, to their own uses
and purposes ; and no part of the price of the foresaid goods, particu-
larly above specified, has been paid to the said Erskine Beveridge or
Henry Meldrum ; and the said Erskine Beveridge has been thereby
falsely and feloniously cozened and defrauded by the said James Hall
and John Howie, or one or other of them : Likeas (3.), in order far-
ther to deceive the said Erskine Beveridge, the said James Hall and
John Howie, along with the said John Stevenson, whose estates bad
been sequestrated under the Bankrupt Act, 2d and 3d Vict., c. 41, on
or about the 16th December 184.9, and who was still undischarged,
and was, time after libelled, in the employment of the said James
Hall as his ofiice-keeper, or was otherwise connected with th»
said James Hall, or one or more of them the said James Hall, John
Howie, and John Stevenson, did, on the 1st day of January 1849,
or on one or other of the days of that month, or of December imme-
diately preceding, or of February immediately following, and in or
near the office situated in or near' Brunswick Street, in or near Glas-
gow, then and now or lately occupied by Alexander Dick junior,
writer in Glasgow, or at some other place in or near Glasgow, to the
prosecutor unknown, write, or cause or procure to be written, a pro-
missory note in the following or similar terms : —
' £200 „ 0 „ 0. ' Manchester !»' Jan? 1849.
' Two months after date we promise to pay to order of Mess" J. & J.
' Hall & Co two hundred pounds value received
' Payable at Mess" Smith, -s
' Payne & C (
Bankers,
' London,'
i
AND CIRCUIT COURTS OF JUSTICIARY. 259
and time last above libelled, as also place last above libelled, or at or j^q_ ^q
near the premises situated in or near Saint Vincent Place, in or near James Hall
Glasgow, then occupied by the said James Hall, or by the mercantile ^'^^"
firm or company of J. & J. Hall & Co., or at some other place in or High Court,
near Glasgow to the prosecutor unknown, the subscription ' J. Steven- \849. '
son & Co.,' was wickedly and feloniously adhibited by the said John „ , . — T"
Stevenson to the said promissory-note, at the desire or with the con- Fraud, &c.
currence of both and each, or one or other of the said James Hall and
John Howie ; and the said subscription was false and forged, being
intended by all and each, or one or more of the said James Hall, John
Howie, and John Stevenson, to pass for, and to be received as,- the
genuine subscription of a mercantile firm or company in Manchester,
carrying on business there under the firm or designation of J. Steven-
son & Co., whereas there was no such mercantile firm or company in
Manchester, carrying on business there, and the foresaid false and
forged subscription was the subscription of a purely fictitious mercan-
tile firm or company ; or, at least, if there was any such firm or mer-
cantile company in Manchester carrying on business there, neither the
said James Hall, John Howie, nor John Stevenson had power or autho-
rity to use or adhibit the signature or subscription of any such mercan-
tile firm or company : Likbas (4.), time and place last above libelled,
the said James Hall, John Howie, and John Stevenson, all and each,
or one or more of them, having caused or procured tiie said false and
forged promissory-note, having thereon the said forged subscription, to
be indorsed by one or other of them the said James Hall, John Howie,
and John Stevenson, or by some other person to the prosecutor un-
known, in the following or similar terms, ' Pay to order of E. Beve-
' ridge Esq'«, J. & J. Hall & Co' upon the false pretence of the same
being a genuine obligation, available to the said Erskine Beveridge,
for the debt due to him in respect of the goods obtained from him as
aforesaid ; and thereafter, the said James Hall, John Howie, and John
Stevenson, all and each, or one or more of them, having caused or pro-
cured the same to be inclosed within a letter, bearing to be dated
' Jany 2'!, 1849,' and to be subscribed with the signature ' J. & J. Hall
' & Co.' and to be addressed to the foresaid Erskine Beveridge, the
said James Hall, John Howie, and John Stevenson, did, all and each,
or one or more of them, upon the 2d day of January 1849, or on one
or other of the days of that month, or of December immediately pre-
ceding, or of February immediately following, and at or near the post-
office situated in or near Glassford Street of Glasgow, or at or near one
or other of the receiving-houses in or near Glasgow where letters are
received or posted for the said post-ofiBce, the particular receiving-
house being to the prosecutor unknown, or at or near some other post-
office in Scotland to the prosecutor unknown, wickedly and feloniously,
use and utter as genuine the said false and forged promissory-note,
having thereon the said forged subscription, they well knowing the
260 CASES BEFORE THE HIGH COURT
No. 40. same to be forged, by putting the foresaid letter, or causing or procur-
"ft'oth^^" ing some person to the prosecutor unknown to put the foresaid letter,
'- containing the said false and forged promissory-note, having thereon
July 25! ' ^^^ ^^^^ forged subscription, into one or other of the post-offices or
1848. receiving-houses aforesaid, the particular post-office or receiving-house
Falsehood, being to the prosecutor unknown, in order that the said false and forged
Fraud, &e. promissory-note, having thereon the said forged subscription, should
be transmitted to the said Erskine Beveridge, and be received by him
as genuine ; and the same was accordingly so received by him in or
near Dunfermline aforesaid, on or about the 3d day of January afore-
said.
Pattison objected to the relevancy of the first charge
of falsehood and fraud. There was no statement in the
minor that there was not a firm of the style of Hall and
Co., nor any equivalent allegation that the pannel Hall
had assumed a false name, character, or errand. Some
such false pretence was requisite to constitute the oiFence
libelled. (Hume, vol. i., p. J 72.) Accordingly, in all
previous cases, some false pretence had been held out,
such as keeping a shop or otherwise, but this charge was
totally destitute of any such allegation.
The Lord Justice-Cleek. — What was found in Hall's
case in 1788 ? (Hume, vol. i., p. 173.)
Pattison. — In Hall's case a shop was hired, and the
false pretence of being a dealer was kept up.
Lord Cockburn. — It is not going into a shop and
buying goods without paying for them that constitutes
the crime ; that it is often done innocently, for a man
may be unable to pay. But the crime here is buying
goods, and procuring delivery, with the intention of not
paying for them at the time. It was the alleged dis-
honest intent charged which constituted the offence, and
that, if proved, was enough.
Lord Mackenzie concurred.
The Lord Justice-Clerk. — ^There is no doubt as to
the relevancy of the charge. It was long ago settled in
Hall's case, which was argued on informations, and has
been the rule ever since.
The objection was repelled.
AND CIRCUIT COURTS OP JUSTICIARY. 261
It appeared in evidence that the bill libelled on was No. 4o.
, 1111 in James Hall
uttered by the pannels, and that there was no such firm & others.
in Manchester as John Stevenson & Co. Highc&urt.
July 25.
The Lord Justice-Clerk, in summing up, told the i849.
Jury, that it was enough to constitute the crime of for- 11^'^''!"'°'^'
gery, that the pannel falsely represented himself in his
signature to a bill, as carrying on business as a member of
a firm in another and distant place from the one where
he uttered the bill. Any person taking a bill signed
' J. Stevenson & Co., Manchester,' would infer the ex-
istence of such a firm there, and consequently suppose
himself possessed of double security.
The Jury found the pannels guilty.
In respect of which verdict of assize, the pannels Hall
and Howie were sentenced to be transported for ten
years, and the pannel Stevenson for seven years.
WEST CIRCUIT.
Autumn- 1849.
GLASGOW.
Present,
Sept. IS.
Lords Mackenzie and Ivory. '^^'"
Her Majesty's Advocate — J. M. Bell A.D, — Cleghorn.
AGAINST
Alexander Feqan and Elizabeth M'Kbnzie ob Hyde
Mackonochie. No. 41.
Alexander
Fegan and
Husband and Wipe — Evidence — Forgery. — Circumstances in Elizabeth
which the question was raised, but not decided, whether a husband ^*™f ®
, , or xivuSa
is admissible as a witness against his wife, accused of forging his
name.
gow.
Sept. 16.
1849.
Alexander Fegan and Elizabeth M'Kenzie or Forgery.
Forgery.
262 CASKS BEFORE THE HIGH COURT
No. 41. Hyde, were charged with Forgery ; as also, the Using
Feg^^nl and uttering as genuine a forged bank order or cheque
mienz* or other writing, for payment of money, having thereon
orHyde^ a forged subscription, knowing the same to be forged :
Glasgow.
^?849.^" In so par as (1.), upon one or other of the days of the month of
" May 1 849, the particular day being to the prosecutor unknown, or of
the month of April immediately preeeding, or of June immediately
following, in or near the house situated in or near Spoutmouth, Gal-
lowgate Street of Glasgow, then and now or lately occupied by Fran-
cis Hyde, now or lately labouring contractor, and now or lately rer
siding there, and by yon the said Elizabeth M'Kenzie or Hyde, wife
of the said Francis Hyde, or one or other of you or at some other
place in or near Glasgow to the prosecutor unknown, you the said
Alexander Fegan and Elizabeth M'Kenzie or Hyde did, both and
each, or one or other of you, wickedly and feloniously, write, or cause
or procure to be written, a bank order or cheque, or other writing, in
the following or similar terms :~
' £16 : 10/3
' Pay to the Bearer Eliza Hyde the sum of Sixteen pound ten
' shillings on producing my deposit Book No 59306.
' To the Managers "J
' of the Glasgow V
' Savings Bank.' J
and you did, then and there, both and each, or one and other of you,
wickedly and feloniously, forge and adhibit, or cause or procure to be
forged and adhibited, to said bank order or cheque, or other writing,
the words or subscription ' Francis Hide,' intending the same to pass
for, and be received as, the genuine subscription of the said Francis
Hyde : Farther, upon the 30th day of May 1849, or on one or other
of the days of that month, or of April immediately preceding, or of
June immediately following, in or near the house or premises situated
in or near Hutcheson Street of Glasgow, then and now or lately occu-
pied as a banking-office by the National Security Savings Bank of
Glasgow, or by James Black senior, now or lately manufacturer in
Glasgow, William Brown, now or lately merchant in Glasgow, and
David Hope, now or lately merchant in Glasgow, and others, or one
or more of them, trustees and managers of the said National Security
Savings Bank of Glasgow, or by Donald Smith, now or lately mana-
ger of the Western Bank of Scotland, treasurer of the Savings Bank
foresaid, Eobert Watson, now or lately actuary of the Savings Bank
foresaid, and William Meikle, now or lately accountant or actuary of
the Savings Bank foresaid, or one or more of them, you the said Alex-
ander Fegan and Elizabeth M'Kenzie or Hyde did, both and each, or
one or other of you, wickedly and feloniously, use and utter, as genu-
AND CIRCUIT COURTS OF JUSTICIARY. 263
'me, the said forged bank order or cheque, or other writing, having No. 41.
thereon the said forged subscription, you knowing the same to be Fegan°an^
forged, by then and there delivering the same, or causing or procuring Elizabeth
the same to be delivered, to John Thomson, now or lately clerk in the ^Hy^g'^
said National Security Savings Bank, and now or lately residing in
Abbotsford Place, Laurieston, in or near Glasgow, and William geptflS.'
Meikle, now or lately accountant or actuary in the Savings Bank '849.
aforesaid, and now or lately residing in Grafton Street of Glasgow, or Forgery,
one or other of them, or to some other officer of the said Savings
Bank to the prosecutor unknown, for the purpose of receiving the
amount of money contained in the said bank order or cheque, or other
writing, which you accordingly did receive, and applied to your own
uses and purposes : Likeas (2.), upon one or other of the days of the
month of May 1849, or of the month of April immediately preceding,
or of June immediately following, the particular day being to the
prosecutor unknown, in or near the house situated in or near Spout-
month aforesaid, or at some other place in or near Glasgow to the
prosecutor unknown, you the said Alexander Fegan and Elizabeth
M'Kenzie or Hyde did, both and each, or one or other of you, wicked-
ly and feloniously, write, or cause or procure to be written, a bank
order or cheque, or other writing, in the following or similar terms : — ■
' £3 : 6s/6d Pay to the Bearer Eliza Hyde three pounds six shillings
' and sixpence, with enterest on producing ray deposit Book N° 59306
' to the Managers of the Glasgow Savings Bank,'
and you did, then and there, both and each, or one or other of you,
wickedly and feloniously, forge and adhibit, or cause or procure to be
forged and adhibited, to said bank order or cheque, or other writing,
the words or subscription ' Frances Hyde,' intending the same to pass
for, and be received as, the genuine subscription of the said Francis
Hyde : Farther, upon the 1st day of June 1849, or on one or other
of the days of that month, or of May immediately preceding, or of
July immediately following, in or near the house or premises situated
in or near Hutcheson Street aforesaid, then and now or lately occu-
pied as a banking-office by the said National Security Savings Bank
of Glasgow, or by the foresaid James Black senior, William Brown,
and David Hope, atd others, or one or more of them, as trustees
and managers foresaid, or by the foresaid Donald Smith, Robert
Watson, and William Meikle, or one or more of them, you the said
Alexander Fegan and Elizabeth M'Kenzie or Hyde did, both and
each, or one or other of you, wickedly and feloniously, use and utter,
as genuine, the said forged bank order or cheque, or other writing,
last above libelled, having thereon the said forged subscription, you
knowing the same to be forged, by then and there delivering the same,
or causing or procuring the same to be delivered, as genuine, to the
said John Thomson and to the said William Meikle, or to one or
other of them, or to some other officer of the said Savings Bank to the
S
264 CASES BEFORE THE HIGH COURT
No. 41. prosecutor unknown, for the purpose of receiving the amount of money
Fe^arTand contained in the said bank order or cheque, or other writing, which
Elizabeth you accordingly did receive, and applied to your own uses and
siptfis'. The diet having been called, the first witness adduced
'^*®' was Francis Hyde, to whose admissibility it was objected,
Forgery. ^^^^ being the husband of one of the pannels at the bar,
he could not be examined.
It was answered, that as the husband was the party
injured, he was necessarily admissible, and that other-
wise, the forgeries of a husband's name by a wife would
go unpunished.
The Court intimated that the point was of sufficient
importance to make it desirable, if possible, that they
should not be pressed to a decision of the question, at
a time when it had emerged suddenly during the pro-
gress of a Circuit.
In these circumstances, and as the male pannel was
the principal object of the prosecution, the Advocate-
Depute gave up the case against the female pannel.
The Jury accordingly returned a verdict of Not
Guilty against the female prisoner, who was dismissed
from the bar.
The case thereafter proceeded against the male pan-
nel, who was convicted, and sentenced to transporta-
tion for the period of fourteen years.
AND CIRCUIT COURTS OP JUSTICIARY. 266
Present,
Sept. 17.
Lord Mackenzie. 1849.
Jane Wyher and Others, Appellants — Broun.
"William Hbndeib, Respondent — W. E. Aytoun.
Appeal — Competency. — Held, that where a suit ad factum prestan-
dum, concluded alternatively for payment of a less sum than £25,
that appeal to the Circuit Court was competent.
This was an Appeal against the judgment of the No. 42.
Sheriff-substitute of Airdrie, refusing to allow a proof others^".
under a petition at the instance of the appellants, craving ^°°'^"^'
restitution of certain articles of household furniture feTu
which had been poinded by the respondent, and which it ^8^9.
was alleged belonged, not to his debtor, George Wyher, Appeal.
husband of one of the appellants, but to her son by a for-
mer marriage.
The articles in question had been part of the goods in
communion in the first marriage, and, on second marriage,
Mrs Wyher had removed with her son and her said fur-
niture to her second husband's house. The poinding
proceeded on the ground that the furniture passed
under the jus mariti of her second husband, and was
attempted to be set aside on the ground, that only
one-third (jure relictce) passed to the second husband,
the other two-thirds being the son's, for whom, as admi-
nistrator, her possession was separate and distinct, and
could not warrant attachment by her own or her hus-
band's creditors.
Appeal came to be heard before Lord Mackenzie.
Aytoun, for the respondent, pleaded as a preliminary
objection, that the conclusions of the summons being ad
factum prcBstandum, the appeal was incompetent.
Beoun answered — ^The petition concluded alternatively
for restitution of the articles, or, failing restitution, pay-
266 CASES BEFORE THE HIGH COURT
No. 42. ment of a sum below £25, as their value. There were
Others «. thus proper pecuniary conclusions for an amount not ex-
"^°^"^' ceediug the statutory sum, and the appeal was therefore
Glasgow. ^ ^
Sept. 17. competent.
Lord Mackenzie had no difficulty in repelling the
objection ; and, after hearing counsel on the merits, he
sustained the appeal, to the effect of allowing a proof.
1849.
Appeal.
John Mathison, Appellant — Broun.
AGAINST
The Monkland Iron and Steel Company, and Alexander W.
Buttery, Respondents — Logan.
Appeal — Competency. — Held, that in an action of mnltiplepoind-
ing, it is the amount admitted by the common debtor which deter-
mines whether an appeal is competent to the Circuit Court, and not
the amount claimed by the respective appearers in the process.
No. 43. This was an Appeal from the judgment of the Sheriff
Mathison of Lanarkshire, to which —
Monkland LoGAN, for the respondents, took a preliminary objec-
ironand ^Jqq ^jjg^t ^g the summous in the court below was one of
steel Co., '
»^f A'®"' multiplepoinding, and as the claims of each party ex-
tery. ceeded £25, there were no proper pecuniary conclusions
Glasgow, for bringing it within the limits of the statutes and relative
1849. Act of Sederunt.
Appeal. Begun, for the appellant — Though the debt set forth
in the claims exceeded £25, the whole debt admitted by
the raisers of the multiplepoinding was below that sum;
the amount admitted by the raisers must be considered
the subject-matter of the suit, the process of multiple-
poinding being wholly irrespective of the amount of debt
due to each party who claimed to be preferred.
Lord Mackenzie, after consulting with Lord Ivory,
repelled the objection to the competency of the appeal*
and the case proceeded on the merits.
AND CIRCUIT COURTS OF JUSTICIARY. 267
1
NORTH CIRCUIT.
Autumn, 1849.
ABERDEEN.
Present,
Sept. 20.
Lords Moncbieff and Cockbdrn. iSiS-
Her Majesty's Advocate. — B. F. Maitland A.D.
AGAINST
William Clark and Janet Gray or Thomson. — C. F. Shand.
Indictment — Murder — Relevancy. — Circumstances in which the
Crown were held not entitled to libel, after describing the person
alleged to have been murdered, ' or some other person to the prose-
cutor unknown.'
William Clark and Janet Gray or Thomson were
charged with Murder :
In so FAR AS, on the 5th day of July 1849, or on one or other of No. 44.
the days of that month, or of June immediately preceding, or of Wiiliam
August immediately following, at or near a part of the public road ja^et Gray
leading from the village of Ellon, in the parish of Ellon, and shire of or
Aberdeen, towards Esslemont House, in the parish of Ellon aforesaid, ,'
then and now or lately occupied by Charles Napier Gordon, Esquire, '^'"^J'^S*""
of Esslemont, which part of said road is situated fifty yards, or there- 1849.
by, or other short distance, westward from the house at or near Craig- j^r ,
hall, in the parish of Ellon aforesaid, then and now or lately occupied
by George Soorgie, a labourer, then aud now or lately residing there,
or on the ground at the side of, or adjoining to, the said part of said
road, or at some other place to the prosecutor unknown in the vicinity
of said part of said road or of the said village of Ellon, you the said
William Clark and Janet Gray or Thomson did, both and each, or one
or other of you, wickedly and feloniously, attack and assault the now
deceased Elizabeth or Bridget Conlie or ConoUy or Clark, wife, or re-
puted wife of, and then or recently before travelling the country in com-
pany with, you the said William Clark, or some other woman, now
deceased, whose name and abode are to the prosecutor unknown, and
did knock or force her down, and did, with a knife, or a razor, or
some other instrument to the prosecutor unknown, which you did in-
troduce into her private part, or by a kick or kicks on or near her
268 CASES BEFORE THE HIGH COURT
No. 44. private part or tlie lower part of her belly, or by some other means
Clarlctnd *° ^^^ prosecutor unknown, inflict two, or thereby, severe wounds
Janet Gray within or near her vagina, to the great effusion of her blood, and did
Thorns n "tl^^rwise maltreat and abuse her ; by all which, or part thereof, the
said Elizabeth or Briget Conlie or ConoUy or Clark, or said other
Sept. 20"' '"'Oman whose name and abode are to the prosecutor unknown, was
1849. mortally injured, and in consequence thereof immediately, or soon
Murder, thereafter, died, and was thus murdered by you the said William
Clark and Janet Gray or Thomson, or tiy one or other of you.
Shand, for the pannels, objected to the relevancy of
the indictment, in so far as, after libelling certain speci-
fic modes by which the deceased was alleged to have
been murdered, it went on to say, ' or by some other
' means to the prosecutor unknown.' This was too
vague. If intended to meet any case not covered by
what preceded, it was much too loose ; and if only in-
tended to refer to the more specific charge before made,
it was unnecessary. It was not pretended that the cir-
cumstances of the case rendered it necessary to take
such a latitude, and it was impossible for a pannel to
meet a charge preferred in so vague terms as those ob-
jected to.
Maitland replied, that the words objected to were
words of style, and were used in almost every case of
the like nature.
Lord Monceeiff. — There is no doubt that the priso-
ner is entitled to know, as far as possible, the exact
charge he is to meet ; and I do not think that in this
case the prosecutor will be entitled to prove any mode
of death differing materially from that which is previ-
ously and more specially charged. The prisoners may
rely upon the protection of the Court in that respect.
At the same time, I am not for sustaining the objection,
to the effect of instantly ordering the words to be de-
leted. Our decision would, doubtless, be founded on as
a precedent, which, sitting in Circuit, I am unwilling to
create in a matter of so much importance.
Lord Cockburn concurred.
The objection was repelled.
AND CIRCUIT COURTS OF JUSTICIARY. 269
Shand then obiected to the words, ' or some other No. u.
Ill William
' woman now deceased, whose name and abode are to ciarkand
' the prosecutor unknown. These words, following the ^"''or "^^
description given of the deceased as the wife of the male '''^'""^"°-
prisoner, seemed to imply that the prosecutor had two 4ep^^2o?"
women in view ; but, if so, he ought to have libelled '"^^-
more specifically. Murder.
Maitland replied — The general words of description
were not intended to denote any other woman than her
whose name had been given, so far as known. All the
information he possessed had been given, but he might
be wrong in believing the deceased to have been the
wife or reputed wife of the pannel ; and it was to meet
any difficulty of that kind which the pannel might occa-
sion, that the general words were used. There was no-
thing incompetent in such a mode of libelling ; for cases
might be supposed where a murder was committed, and
no one be able to say even to what country the de-
ceased belonged.
Lord Cockburn. — I have no doubt of the compe-
tency of prosecuting for the murder of a person who is
utterly, unknown ; but can an indictment stand which
simply charges a prisoner with the murder of a woman
unknown, without giving any account whatsoever of her,
when, and how found ? I think not ; and therefore I
am for sustaining the objection, because, whatever the
prosecutor may have intended in point of construction,
the words objected to might be made to apply to any
dead woman who ever lived in the world.
Lord Moncreiff concurred.
The words objected to were struck out of the indictment.
The case went to trial ; and after hearing .counsel on
both sides, the Jury found a verdict of Not Proven
against both prisoners.
In respect of which verdict of assize, the said William
Clark and Janet Gray or Thomson were assoilzed
simpliciter, and dismissed from the bar.
270
CASES BEFORE THE HIGH COURT
PERTH.
Sept. 26.
1849.
Present,
Lords Moncreiff and Cockburn.
Her Majesty's Advocate — E. F. Maitland A.D.-
W. H. Thomson A. D.
No. 45.
Walter
Duncan.
Perth.
Sept. 26.
1849.
Breach of
Trust and
Embezzle-
ment.
against
Walter Duncan — W. G. Dickson.
Embezlement. — Circumstances in which the Court directed the jurj
to find the pannel guilty of embezzlement, notwithstanding his ac-
counts had been passed, wherein was shewn the true balance due
by him.
W^ ALTER Duncan was charged with Breach of Trust
and Embezzlement :
In so far as, you the said "Walter Duncan having been appointed
treasurer of a friendly society, or other similar association, at or near
Dundee, or carrying on its operations there, calling itself, or known
as, the Prince's Street Yearly Society, or having some similar desig-
nation, of which John Fichet, now or lately a storekeeper in the em-
ployment of Gourlay, Mudie, and Company, engineers and founders
in Dundee, and now or lately residing at or near Albert 'Street of
Dundee, David Smith, a wright, now or lately residing at or near
Ann Street, Maxwelltown of Dundee, Richard Mennie, a shoemaker,
now or lately residing at or near Prince's Street of Dundee, and Wil-
liam Kidd, a mechanic, now or lately residing in or near Union
Street, Maxwelltown of Dundee, or one or more of them, and others,
were individual members, and you the said Walter Duncan having
acted as treasurer aforesaid from the 2d day of November 1848 to at
or about the 29th day of May 1849, both inclusive, and haviilg, dur-
ing the said period, been entrusted as treasurer aforesaid to collect
and receive or hold the funds of the said society, and to receive or
hold the sum of £123, or thereby, borrowed by the said society, or by
you the said Walter Duncan, as treasurer aforesaid, and for behoof of
said society, from the Eastern Bank of Scotland ; and it being the
duty of you the said Walter Duncan, as treasurer aforesaid, to apply
the said funds and borrowed money^ so far as requisite, to the pur-
poses of the.said society, and faithfully to account to the said society,
or the individual members thereof, for the said funds and borrowed
money so entrusted to you, you the said Walter Duncan, did, at one
or more times, between the said 2d day of November 1848 and the
AND CIRCUIT COUllTS OF JUSTICIARY. 271
eaid 29th day of May 1849, both inclusive, the particular time or No. 45.
times being to the prosecutor unknown, in or near the house situated p^^^^
at or near Blackscroft of Dundee, then and lately occupied by you
Perth
the said Walter Duncan, or elsewhere in or near Dundee to the pro- gg^t. 26.
secutor unknown, wickedly and feloniously, and in breach of the trust 1849.
committed to you as aforesaid, embezzle and appropriate to your own Breach of
use the sum of eighty pounds twelve shillings and threepence-half- S"?* *,
penny sterling, or thereby, or part thereof, part of said funds or bor- meat.
rowed money entrusted to you as aforesaid, and did fail to account
therefor to the said society, and to the said John Fitchet, David
Smith, Richard Mennie, and William Kidd, or one or more of them,
and others, the indvidual members thereof.
It appeared in evidence, that the society libelled on
was a yearly sick and funeral society, which commenced
in the November of one year, and lasted till that month
in the year following, when it was wound up, and the
funds, so far as not exhausted, were distributed among
the members. A new society was constituted for the
same purposes immediately afterwards by the members
of the preceding one, and the requisite officers elected.
The pannel had been treasurer of nine of these succes-
sive societies. His duty was to receive the society's
funds, and to pay them to the individuals entitled by
the rules to relief. According to the regulations (which
were printed) the members paid their subscriptions
every Saturday evening ; and the pannel was required
to put the sum so subscribed into bank on the following
Monday, retaining only £8 in his hands to meet the
weekly expenses.
The pannel's books were made up and balanced
monthly, under the eye of a managing committee, when
the balance in his hands was regularly stated against
him, and carried forward to the next month. The
books were open to the society, being produced at their
several meetings.
From the monthly statements and relative documents, it
appeared that the pannel, instead of putting into the bank
the weekly subscriptions, retaining only £8 for current
expenses, had allowed a balance to accumulate against
272 CASES BEFORE THE HIGH COURT
No. 45. him for several successive months of £23, £34, £35,
Duncan. £54, £113 respectively, and lastly, the sum of £80 : 12 : 3
Perth, libelled. It also appeared, that when the immediately
1849. ' preceding society was wound up, there was a balance of
Breach of £22 agaiust him ; notwithstanding which he was elected
Embezzi'e- treasurer of the society libelled. It was proved that
'"^°*" the managing committee had remonstrated verbally
with him regarding his increasing balances, but without
getting any satisfactory explanations. Until the date
libelled, however, they had never become alarmed for
the safety of their funds, or brought the matter formally
before the society by a regular minute.
The pannels books were correctly kept, and he was
not in arrear to any member for sick or funeral allow-
ances. The declaration admitted, that the pannel was
in arrear (but only for about half of the sum proved
against him), and that he had applied the sum so in ar-
rear to his private purposes.
Upon these facts, E. F. Maitland for the Crown,
asked a verdict of guilty.
W. G. Dickson, for the pannel, contended, that al-
though the prosecutor had proved the pannel's retention
of the sum libelled, he had failed to show that the reten-
tion was criminal. In order to make out a charge of
embezzlement, the pannel's act must be proved both to
have been fraudulent, and without the consent of his
employers. But here, there was evidence of the society's
consent for many successive months to the pannel re-
taining a large balance in his hands ; and he was even
re-elected to his oflfice, notwithstanding his having been
very considerably in arrear to the preceding society.
Their consent was therefore proved ; and the sum which
the pannel owed them thereby became a loan from them,
in place of being embezzled.
Lord Cockburn, in summing up, said — That this was
an important case in reference to the law, and to the
criminal responsibility of persons entrusted with the
money of others for special purposes. The Jury need
AND CIRCUIT COURTS OF JUSTICIARY. 273
not feel any anxiety as to the facts ; because none of the ^■. ^•
material ones seemed to be disputed, and they were per- Duncan.
fectly simple. The sole point on which the parties dif- Perth,
fered, was as to the construction, with reference to guilt ^849. '
or innocence, which the ' circumstances ought to re- Breach of
Trust and
CeiVe. Embezzle-
It would be a mistake to suppose that the charge was ™™*'
merely that the prisoner had fallen behind in his ac-
counts. It was, that he had beeu guilty of breach of
trust or embezzlement, or of a wicked and felonious ap-
propriation. The fact of his having been the society's
debtor is admitted. But the question was, did he become
so criminally ? This it was the province of the Jury to
determine, on a review of the whole circumstances. Of
these the principal were, that the prisoner was the officer of
this charitable society. He was not entitled to act at all
for himself. He was the holder of the funds of others ;
and these, arising from the contributions of persons in
humble situations, for the relief of themselves and others
when in distress, were entitled to his most scrupulous
protection, and he had no discretion as to his applica-
tion of them. By the 10th Rule of the Society, he was
allowed to have £8 in his hands to answer current de-
mands ; and every farthing above this, he was expressly
bound to deposit every Monday in the bank for his con-
stituents. He held the money therefore officially, — and
under a special direction as to its custody and application.
He was in the same position as a servant, who had got
cash from his master to carry to a particular place. It
was certain that he violated this official duty. Instead
of only owing the society £8, he at last owed it about
£80. And what was the cause of this deficiency ? No
mistake, — no dispute about the true amount of the balance,
— no direction by the society, — no inadvertent confusion,
or mixing of his own funds wifli theirs. It was, that he
had taken the money to himself. He says in his declara-
tion, ' that the reason he is so deficient is, that he has
' employed the money in his own private matters, and he
274 CASES BEFORE THE HIGH COURT
No. 46. ' is very sorry for having injured the society, who put
Duncan. * Confidence in him.'
Perth. It was for the Jury to say whether they could put
^?849^.^' any construction on this proceeding consistent with the
Breach of prisoucr's innocence ? It seemed to his Lordship very
Embezde- ^^^^ ^^^ common case of an agent, or servant, getting
ment. gash for a special purpose, and making off with it, or
spending it for his own behoof. It was no mere getting
into debt. It was a getting into debt by a direct and
intended self appropriation.
Some things had been urged for the prisoner, — which
certainly deserved the Jury's attention.
One was, that the society had known of his regularly
increasing deficiency without checking it. But, in the
first place, the jury would consider whether their know-
ledge was proved. That they were alarmed is certain ;
for they had spoken to him on the subject. But the
secretary swore that the prisoner put them off by what
had since been found to be, evasive pretences. However,
in the second place, whatever effect this negligence of the
society might have on account in awarding punishment, it
was no legal defence. The prisoner himself admits that
the society confided in him, and he says he is sorry for
having abused their confidence. To urge this confidence
on the part of the employer, as a defence for abusing it,
seems rather an awkward topic for the abuser.
Another was, that the prisoner intended to have replaced
the money. The Jury had better discard this utterly.
Many enormous frauds were committed under the expec-
tation that they may be concealed, or atoned for, by re-
placing the funds before their abstraction shall be de-
tected. This was a common delusion, or pretence, with
embezzlers. But it was no more a defence against fraud,
than it would be against a charge of robbery.
The last was, that the prisoner had the consent of the
society for what he did. If the Jury believed this to be
the fact, they were bound to acquit No party who
consented to it, was either cheated or robbed. But they
AND CIRCUIT COURTS OF JUSTICIARY. 275
must have clear evidence of it, before they could credit No^ «^
so extraordinary a fact, as that a charitable society Dnnean.
agreed to let its treasurer appropriate its funds. His gj^rth^
Lordship was not avirare where the evidence was to be im. '
found here, or anything: that could be mistaken for it. Breach of
. • 1 ■ Trust and
On the whole, there were two opposite considerations, Embezzie-
which the Jury ought to keep in view. On the one '"''°*-
hand, it would be hard and unjust, if the prisoner were
to be sacrificed to the feeling that he had injured a
friendly society. And on the other hand, if he was
guilty, it was important for the law, and as a warning
to the holders of other men's funds, that his guilt should
be declared.
The Jury, after retiring, returned to put a question
to the Court. One of their number pointed out that
there were periodical docquets in the books ; in which
a series of balances far beyond £8 were struck as against
the prisoner, and the question was, whether each of
these docquets was not in law a virtual consent by the
society, that the prisoner might continue to hold the
sums thus set down as due by him ?
LoED CocKBURisr, after consulting with Lord Mon-
creifT, answered, — That they were both of opinion
that, as a matter of law, this was neither the effect nor
the object of the docquets ; but that if the Jury thought
that, as a matter of fact, the docquets indicated consent
by the society, they of course were entitled to put this
construction upon the fact.
The Jury found the pannel guilty as libelled, but
unanimously and strongly recommended him to mercy.
Lord CocEBURisr, addressing the prisoner, said, that
he thought the Jury had disposed of the case humanely
towards him, but firmly towards the law. In the case
that seemed to come nearest this, the Court had sen-
tenced the prisoner to six month's imprisonment ; — cer-
tainly a very lenient sentence. But here there were
two circumstances which operated in the prisoner's fa-
276
CASES BEFORE THE HIGfH COURT
vour. He had already been a considerable period in
jail ; and, to a certain extent, he had been led on by the
society failing to check him effectually the instant it be-
came alarmed. In this situation, the present sentence
Breach of was that of imprisonment for three months.
Trust and
Embezzle-
ment.
No. 45.
Walter
Duncan.
Perth.
Sent. 26.
1849.
N()v. 6.
1849.
Present,
The Lord Justice-Clerk.
Lords Moncreifp and Cockburn.
Her Majesty's Advocate — Beas A.D. — E. F. Maitland A.D.
AGAINST
George Kippen — Logan — A. T. Boyle.
Relevancy — Falsehood, Fraud, and Wilful Imposition. — Cir-
cumstances in which an objection to the relevancy of an indictment,
that it did not charge that the attempt to defraud had been success-
ful, was repelled.
Geoi^^e' GrEORGE KiPPEN, Writer in Glasgow, was indicted,
Kippen. That albeit, by the laws of this and of every other well-
^'g''^""''*- governed realm, Falsehood and Fraud, especially when
1 "49. committed in the form and under colour of legal pro-
Fr'^ud°& ' c®6<ii"gS' ^^*i ^^"^ *^^ purpose of obstructing or defeating
the course of justice, and to the lesion, injury, and op-
pression, of the lieges, is a crime of an heinous nature,
and severely punishable :
Yet true tt is and of verity, that you the said George Kippen
are guilty of the said crime of falsehood and fraud, aggravated as
aforesaid, actor, or art and part : In so par as (1.), the Company of
Proprietors of the Glasgow Water -Works, and Daniel Mackain, now
or lately secretary to the said company, and now or lately residing at
or near Dalmarnock, in or near Glasgow, having, on the 29th day of
February 1848, or about that time, obtained a warrant granted by
Henry Glassford Bell, Esquire, advocate, sheriff-substitute of Lanark-
AND CIRCUIT COURTS OF JUSTICIARY. 277
shire, against you the said George Kippen, and other persons referred No. 46.
to in the said warrant, by which, in respect of your having refused or ifippen.
delayed to pay to the said Company, or the said Daniel Mackain, as jj;„jjCo„rt.
secretary aforesaid, the sum of £l : 8 : 6, being water-rent or rate due Nov. 6.
by you to the said Company, authority was given to oflScers of court "
to enter the premises of you the said George Kippen, and to seize and Falsehood,
1 . » , , n. 1 T 1 • 1 i ii. Fraud, &e.
take possession of your goods and efJeots, and by which warrant autho-
rity was also given to the said Daniel Mackain, as secretary aforesaid,
if the said sum, together with the expense of procedure, should not be
paid within three days after such goods and effects should be so seized
and taken possession of," to sell or dispose of the said effects, or such
part thereof as might be necessary, by public roup, and to apply the
price thereof in payment of the said sum of water- rent or rate due by
you the said George Kippen as aforesaid, with the expenses of proce-
dure ; and you the said George Kippen having formed the wicked and
felonious purpose of obstructing or defeating execution of the said war-
rant, did, on the 19th day of April 1848, or on one or other of the
days of that month, or of March immediately preceding, or of May
immediately following, in or near the house or office at or near Fife
Place aforesaid, then and now or lately occupied by you, or in or near
the sheriff-clerk's office of Glasgow, or at some other place in or near
Glasgow to the prosecutor unknown, falsely, fraudulently, and felo-
niously, devise, and raise, or cause or procure to be raised, a summons
before the ordinary Sheriff-Court of Lanarkshire, at Glasgow, in name
of James M'Gill, sometime provision-merchant in Melville Court,
Trongate Street of Glasgow, and now or lately residing in or near
Little Hamilton Street, Glasgow, or of some wholly fictitious person
designed in the said summons as ' James M'Gill Provision Merchant
' in Glasgow Pursuer,' against the said Daniel Mackain, as secretary
to the said Company of Proprietors of the Glasgow Water-Works, and
for behoof of said Company, setting forth, that the said Daniel Mac-
kain, or an officer acting for him, had, on or about the 12th day of
April 1848, proceeded to the said •James M'Gill, pursuers house in
Adelphi Street, Hutchisontown, Glasgow, and, contrary to his wish,
illegally executed a poinding of certain effects situated therein, for an
arrear of water-rent said to be due to the said Daniel Mackain, de-
fender, and that in carrying into effect the said poinding, the said
Daniel Mackain, defender, or the person acting for him, assaulted and
abused the said James M'Gill, pursuer, and repeatedly knocked him
down, and that the said Daniel Mackain was therefore liable in
damages to the said James M'Gill, pursuer, therefor, and concluding
for payment of the sum of £10 sterling, in name of damages, with ex-
penses of process, or having some similar narrative, allegations, and
conclusions, and containing a warrant or precept of arrestment in com-
mon form, the said summons, in the narrative, allegations, and conclu-
sions thereof, being, and you the said George Kippen well knowing it
278 CASES BEFORE THE HIGH COURT
No. 46. to be, entirely false, fraudulent, and fictitious, and intended for the
ffippfn. purpose of fraudulently obstructing or defeating execution of tbe said
warrant obtained against you by the said company and the said Daniel
Nov.°6. ' Mackain, their secretary, as aforesaid ; and you the said George Kip-
-8^9- pen did, on the said 19th day of April 1848, or on a day, after and
Falsehood, about that time, to the prosecutor unknown, in or near the said house
Fraud, &c. ^^ ^jg^g ^^ ^^ ^g^^j, •pj£g 'place aforesaid, or elsewhere in or near Glas-
gow to the prosecutor unknown, in virtue or on pretence of the war-
rant or precept of arrestment aforesaid, contained in the said false and
fraudulent summons, wickedly, fraudulently, and feloniously, cause or
procure to be served on yourself by John M'Kinlay, then and now or
lately sheriff-oflBcer in Glasgow, and now or lately residing in Mait-
land Street of Cowcaddens, in or near Glasgow, an arrestment, in
name of the said James M'Gill, fencing and arresting, or pretending
to fence and arrest, in the hands of you the said George Kippen, all
moveable goods, debts, and effects, due by you to the said Company,
or to the said Daniel Mackain for their behoof ; and all this you the
said George Kippen did, in pursuance of the wicked and felonious pur-
pose, formed by you as aforesaid, of obstructing or defeating the exe-
cution of the said decree or warrant against you, obtained by the said
Company of Proprietors of the Glasgow Water-Works, and by the
said Daniel Mackain, as before libelled, and to the lesion, injury, and
oppression of the said Company, and of the said Daniel Mackain, or of
one or other of them : Likeas (2.), William M'Lean, a clerk, now or
lately residing at Springvale, in or near Glasgow, having on the 13th
day of April 1848, or about that time, obtained decree before the
Sheriff Small-Debt Court of Glasgow, at his instance against you the
said George Kippen, for the sum of £2 : 6 : 2 of principal, and 48. Id.
of costs, you the said George Kippen, having formed the wicked and
felonious purpose of obstructing or defeating execution of the said de-
cree, did, on the 18th day of April 1848, or on one or other of the
days of the said month of April, or of March immediately preceding,
or of May immediately following, in or near said house or oflBce in or
near Fife Place aforesaid, then and now or lately occupied by you the
said George Kippen, or in or near said Sheriff-clerk's office of Glasgow,
or elsewhere in or near Glasgow to the prosecutor unknown, falsely,
fraudulently, and feloniously, devise, and raise, or cause or procure to
be raised, before the ordinary Sheriff-Court at Glasgow, a summons in
name of James Begbie, now or lately residing in or near Great Dove
Hill, in or near Glasgow, or of some wholly fictitious person, designed
iu the said summons as ' James Begbie Commission Agent Melville
' Court Glasgow, Pursuer,' against the said William M'Lean, setting
forth that the said James Begbie, pursuer, had lent to the said William
M'Lean, defender, on the 15th day of March 1848, the sum of £50
sterling, and that the said sum was wholly owing and unpaid, and con-
cluding for payment of the same, with interest and expenses of pro-
AND CIRCUIT COURTS OF JUSTICIARY. 279
cess, or having some similar narrative, allegations, and conclusions, No. 46.
and containing a warrant or precept of arrestment in common form, Kippen.
the said summons being, in its narrative, allegations, and conclusions, „• i. Court
and you the said George Kippen well knowing it to be, entirely false, Nov. 6.
fraudulent, and fictitious, and intended for the purpose of fraudulently ^^
obstructing or defeating execution of the said decree obtained against Falsehood,
you by the said William M'Lean as aforesaid ; and you the said Georgei '
Kippen did, on the said 18th day of April 1848, or on a day, after and
about that time, to the prosecutor unknown, in or near the said house
or office at or near Fife Place aforesaid, or elsewhere in or near Glas-
gow to the prosecutor unknown, in virtue or on pretence of the said
warrant or precept of arrestment contained in said false and fraudulent
summons last above libelled, wickedly, fraudulently, and feloniously,
cause or procure to be served upon you by the foresaid John M'Kin-
lay, an arrestment in name of James Begbie, fencing and arresting, or
pretending to fence and arrest, in your hands all moveable goods, debts,
and effects due by you to the said "William M'Lean ; and all this you
the said George Kippen did in pursuance of the wicked and felonious
purpose, formed by you as aforesaid, of obstructing or defeating exe-
cution of the said decree against you obtained by the said William
M'Lean, and to the lesion, injury, and oppression of the said William
M'Lean: Likeas (3.), Walter Michael Oppenheim, now or lately
looking-glass merchant in or near Miller Street of Glasgow, and now
or lately residing in Stafford Place, New City Eoad, in or near Glas-
gow, having, in conjoined actions before the Sheriff-Court of Lanark-
shire, at your instance against the said Walter Michael Oppenheim,
which had been advocated to the Court of Session, and thereafter re-
mitted back to the Sheriff of Lanarkshire, obtained, on the 4th day of
February 1848, or about that time, decree in his favour by the said
Henry Glassford Bell, Esquire, sheriff-substitute of Lanarkshire,
against you the said George Kippen, for the sum of £33 : 9 : 9 of ex-
penses of process, and for the sum of Ss. as the expense of extracting
and recording said decree ; and the said decree having been extracted,
and you the said George Kippen having thereafter ajjpealed certain
interlocutors of the Court of Session in said advocation to the House
of Lords, and the Lords of Council and Session having, by interlocutor
of the 5th day of July 1848, allowed interim execution, in terms of
the statute 48th George III., chapter 151, of said decree last above
libelled, you the said George Kippen having formed the wicked and
felonious purpose of obstructing or defeating the execution of the said
decree, did, on the 7th day of July 1848, or on one or other of the
days of that month, or of June immediately preceding, or of Auo-ust
immediately following, in or near said house or office in or near Fife
Place aforesaid, then and now or lately occupied by you the said
George Kippen, or in or near said Sheriff-clerk's office of Glasgow, or
elsewhe;-e in or near Glasgow to the prosecutor unknown, falsely, frau--
T
280 CASES BEFORE THE HIGH COURT
No. 46. dulently, and feloniously, devise and raise, or cause to be raised, be-
ffitraln ^°'® ^^^ ordinary Sheriff-Court at Glasgow, a summons, in name of
— — — Robert Eussell, now or lately a gas-surveyor, and now or lately resid-
JNov. 6. ' ^^S '° or near Gallowgate Street of Glasgow, or of some wholly ficti-
i'!^9- tious person, designed in the said summons as. ' Robert Russell, some-
Falsehood, ' time brickmaker in Glasgow, and residing there, pursuer,' against
Fraud, &c. ^^^ ^^j^ Walter Michael Oppenheim, setting forth that the said Robert
Russell, pursuer, had, on the 11th day of November 1847, lent the
sum of £50 sterling to the said Walter Michael Oppenheim, defender,
and that the said sum was wholly owing, and concluding for payment
of tiie same with expenses, or having some similar narrative, allega-
tions, and conclusions, and containing a warrant or precept of arrest-
ment in common form, the said summons being, in its narrative, alle-
gations, and conclusions, and you the said George Kippen well knowing
it to be, entirely false, fraudulent, and fictitious, and intended for the
purpose of fraudulently obstructing or defeating execution of the said
decree obtained against you by the said Walter Michael Oppenheim as
aforesaid ; and you the said George Kippen did, on the said 7th day
of July 1848, or on a day, after and about that time, to the prosecutor
unknown, in or near the office or premises situated in or near Bruns-
wick Place, in or near Glasgow, then and now or lately occupied by
. Robert Chalmers, an agent there, or elsewhere in or near Glasgow to
the prosecutor unknown, in virtue or on pretence of the said warrant
or precept of arrestment contained in said false and fraudulent. sum-
mons last above libelled, wickedly, fraudulently, and feloniously, cause
or procure to be served upon you by William Smith, now or lately
sheriff-officer in Glasgow, and now or lately residing in Bell Street of
Glasgow, an arrestment in name of said Robert Russell, fencing and
arresting all goods, debts, or effects in your hands, belonging to the
said Walter Michael Oppenheim ; and all this you the said George
Kippen did, in pursuance of the wicked and felonious purpose, formed
by you as aforesaid, of obstructing or defeating execution of the said
decree against you, obtained by the said Walter Michael Oppenheim,
as before libelled, and to the lesion, injury, and oppression of the said
Walter Michael Oppenheim ; And you the said George Kippen, in
further pursuance of the wicked and felonious purpose last above libel-
led, did, on the 7th day of July 1848, or on one or other of the days
of that month, or of June immediately preceding, or of August imme-
diately following, in or near said house or office in or near Fife Place
aforesaid, then and now or lately occupied by you the said George
Kippen, or in or near said sheriff-clerk's office of Glasgow, or elsewhere
in or near Glasgow to the prosecutor unknown, falsely, fraudulently,
and feloniously, devise and raise, or cause or procure to be raised, be-
fore the Sheriff Small-Debt Court of Glasgow, a summons or complaint
in name of Robert Burnside, or Robert Allan Burnside, then and now
or lately spirit-dealer in or near Howard Street of Glasgow, and now
AND CIRCUIT COURTS OF JUSTICIARY. 281
or lately residing in or near Jamaica Street of Glasgow, or of some No. 46.
wholly fictitious person, designed in the said summons or complaint as ^po'g^
' Robert Burnside, spirit-dealer, Howard Street, Glasgow,' against the
said "Walter Michael Oppenheim, setting forth that the said defender '§oy°g' '
was owing to the complainer the sum of £3 : 7 : 9 sterling, per account, .' 849.
and concluding for payment of the said sum with expenses, or with Falsehood,
some similar narrative, allegations, and conclusions, and containing a Fraud, &c.
warrant or precept of arrestment in common form, the said summons
or complaint, in its narrative, allegations, and conclusions, being, and
you the said George Kippen well knowing it to be, entirely false, frau-
dulent, and fictitious, and intended for the purpose of fraudulently ob-
structing or defeating execution of the said decree obtained against you
by the said Walter Michael Oppenheim as aforesaid ; and you the
said George Kippen did, on said 7th day of July 1848, or on a day,
after and about that time, to the prosecutor unknown, in or near the
said office or premises situated in or near Brunswick Place aforesaid,
then and now or lately occupied by the said Robert Chalmers, or else-
where in or near Glasgow to the prosecutor unknown, in virtue or on
pretence of the said warrant or precept of arrestment contained in the
said false and fraudulent summons or complaint last above libelled,
wickedly, fraudulently, and feloniously, cause or procure to be served
upon you, by the said William Smith, an arrestment, in name of said
Robert Burnside, or Robert Allan Burnside, fencing and arresting, or
pretending to fence and arrest, in your hands, all goods, efiects, debts,
and sums of money belonging to the said Walter Michael Oppenheim,
and that to an amount not exceeding £8:6:8; and all this you the
said George Kippen did, in farther pursuance of the wicked and felo-
nious purpose, formed by you as aforesaid, of obstructing or defeating
the execution of the said decree obtained against you by the said
Walter Michael Oppenheim, and to the lesion, injury, and oppression,
of the said Walter Michael Oppenheim ; and in further prosecution of
your said wicked and felonious purpese of obstructing or defeating the
execution of the said decree obtained against you by the said Walter
Michael Oppenheim, you the said George Kippen did, on thp 14th day
of July 1848, or on one or other of the days of that month, or of June
immediately preceding, or of August immediately following, in or near
said house or office in or near Fife Place aforesaid, or in or near said
sheriff-clerk's office, or elsewhere in or near Glasgow to the prosecutor
unknown, falsely, fraudulently, and feloniously, raise, or cause or pro-
cure to be raised, before the ordinary Sheriff-Court at Glasgow, a sum-
mons of multiplepoinding at your instance, against the said Walter
Michael Oppenheim, Robert Russell, and Robert Burnside or Robert
Allan Burnside, setting forth that you were indebted to the said Walter
Michael Oppenheim in a sum of money, the amount of which would
be condescended on in the process to follow on said summons, and that
you were not in safety to pay the same, in respect of the said arrest-
282 CASES BEFORE THE HIGH COURT
No. 46. ments, or pretended arrestments, served, or pretended to be served, on
George ^^ ^^^ names of the said Robert Russell and Robert Bumside or
Kippen. J ' r . 1 1 1 J- ii i
Robert Allah Burnside respectively, as aforesaid, and concluding that
^ n'Jiv.T*' you tlie said George Kippen should be held liable in once and single
1849 payment only, and under deduction of the expenses of the said process
Falsehood, of niultiplepoinding ; and this also you did to the lesion, injury, and
Fraud, &c. oppression of the said Walter Michael Oppenheim : Likbas (4.),
Alexander Dick junior, writer in Glasgow, and now or lately residing
in or near Brunswick Street, in or near Glasgow, having, on the Slst
day of June 1848, or about" that time, obtained decree at his instance
before the ordinary Sheriff-Court at Glasgow, against you the said
George Kippen, for the sum of £11 : 6 : 10, together with the sum of
£l : 16 : 3 of expenses, and 5s. as the dues of extract, and said decree
having been extracted, and a charge of payment having been given
thereon to you the said George Kippen, on the 4th day of July 1848,
or about that time, you the said -George Kippen having formed the
wicked and felonious purpose of obstructing or defeating execution of
the said decree, did, on the 17th day of July 1848, or on one or other
of the days of that month, or of June immediately preceding, or of
August immediately following, in or near the house or office at or near
Fife Place aforesaid, then and now or lately occupied by you the said
George Kippen, or in or near the said sheriff-clerk's office of Glasgow,
or at some other place in or near Glasgow to the prosecutor unknown,
falsely, fraudulently, and feloniously, devise and raise, or cause or pro-
cure to be raised, before the Sheriff Small-Debt Court of Glasgow, a
summons or complaint in name of William Colquhoun, carter, now or
lately residing in or near Hunter Street, in or near Glasgow, or of
some wholly fictitious person, designed in the said summons or com-
plaint as ' William Colquhoun, carter 1 Graham Street Gallowgate
' Glasgow,' against the said Alexander Dick junior, setting forth that
the said Alexander Dick junior was owing to the said William Col-
quhoun the sum of £5 sterling, per account, the said sum of £5 being
stated in the account referred to in the said summons or complaint, as
cash lent by the said William Colquhoun to the said Alexander Dick
junior, and concluding for payment of the same with expenses, or hav-
ing some similar narrative, allegations, and conclusions, and containing
a precept of arrestment in common form, the said summons or com-
plaint being, in the narrative, allegations, and conclusions thereof, and
you the said George Kippen well knowing it to be, entirely false, frau-
dulent, and fictitious, and intended for the purpose of fraudulently ob-
structing or defeating execution of the said decree obtained against
you by the said Alexander Dick junior as aforesaid ; and you the said
George Kippen did, on the said 17th day of July 1848, or on a day,
after and about that time, to the prosecutor unknown, on or near
Queen Street or Exchange Square of Glasgow, opposite or near to the
Exchange of Glasgow, or elsewhere in or near Glasgow to the prose-
AND CIRCUIT COURTS OF JUSTICIARY. 283
cutor unknown, in virtue or on pretence of the said warrant or precept No. 46.
of arrestment contained in the said false and fraudulent summons last ^?ppf°_
above libelled, cause or procure, to be served on you by James Christi- — -— — :
, , . ,. • T. • 1 T.1 HighCourt.
son,, sheriff -ofiBcer, now or lately residmg in or near Brunswick rlace, jj^y^ g.
in or near Glasgow, an arrestment, in name of said William Colquhoun, ^849.
fencing and arresting, or pretending to fence and arrest, all sums of Falsehood,
money, goods, and effects, in your hands, belonging to the said Alex- Fraud, &o.
ander Dick junior, and that to an extent not exceeding £8:6:8; and
all this you the said George Kippen did in pursuance of the wicked
and felonious purpose,, formed by you as aforesaid, of obstructing or
defeating execution of the said decree obtaineiTby the said Alexander
Dick junior against you, and to the lesion, injury, and oppression, of
the said Alexander Dick junior ; and in farther prosecution of the said
wicked and felonious purpose, last above libelled, you the said George
Kippen did, on the 18th day of July 1848, or about that time, in or
near the said house or office in or near Fife Place aforesaid, or in or
near the said sheriff-clerk's office, or elsewhere in or near Gla^ow to
the prosecutor unknown, wickedly, fraudulently, and feloniously, raise,
or cause to be raised, before the ordinary Sheriff-Court of Glasgow, a
summons of multiplepoinding at your instance, against the said Alex-
ander Dick junior and the said William Colquhoun, and another per-
son therein designed ' David Thomas carter and cowfeeder in Trades-
' ton of Glasgow,' setting forth the said decree at the instance of the
said Alexander Dick jiinior, and said charge thereon, and that you
were not in safety to make pajmient of the sums contained in said de-
cree, in respect of an arrestment at the instance of the said David
Thomas, designed as aforesaid, and of the said arrestment in name of
the said William Colquhoun, and concluding that you the said George
Kippen should be found liable in once and single payment only, and
under the deduction of the expenses incurred by you in the process to
follow thereon, which summons of multiplepoinding, last above libelled,
in so far it is founded on the said arrestment, at the instance of the
said William Colquhoun, was a fraudulent and felonious proceeding on
the part of you the said George Kippen, and was to the lesion, injury,
and oppression, of the said Alexander Dick junior : And, you the said
George Kippen, during the whole course of your said false and fraudu-
lent proceedings above libelled, were a practitioner of the law, and a
procurator of the Sheriff-Court of Lanarkshire, at Glasgow, and pos-
sessed thereby facilities, and did avail yourself of the same, for devis-
ing and carrying on the said frauds.
Logan objected to the relevancy of the libel. The
major charged falsehood and fraud, aggravated as de-
scribed. The word especially applied to the aggravations.
That was clear from the Subsumptions of the libel ; and
284 CASES BEFORE THE HIGH COURT
No. 46. the objection was, that the charges in the minor did not
Kippen. answer to the principal crime alleged, but only to the
High Court- aggravations.
\°U9.' In the first charge, it was set forth, that ' you the said
Falsehood, ' Gcorgo Kippeu having formed the wicked and felonious
rau , c. , purpose of obstructing or defeating execution of the said
* warrant, did,' &c. It was not charged that this was frau-
dulently done ; nothing more followed than a mere detail
of the modus operandi in which the pannel was said to
have carried out his plan, which was not distinctly aver-
red to have been either false or fraudulent. No doubt
the minor answered to the alleged aggravation, but the
objection was, it did not come up to the principal
crime. At any rate, it amounted to falsehood only,
and not to fraud. Falsehood per se was not a crime. In
all cases fraud had been joined, and this shewed that
the falsehood was no crime, unless it had taken effect.
{Gibh's case. Bell's Notes, p. 64.) This was rendered
still more apparent from the case of M^Intyre (Inverness,
Sept. 14. 1837, Swinton, vol. i., p. 536), where it was
held, that where imposition was charged in the major, it
must be alleged in the minor that it took effect. Case
of Christie (High Court, March 12. 1841, Swinton,
vol. ii, p. 534.) The objection there went to the undue
latitude taken by the prosecutor, but the principle of the
case was the same as that of M'Intyre, and was more-
over a precedent as to the form of libel necessary in a
case of the kind. So also in the case of Miller (Jed-
burgh, Sept. 1847, Arkley, p. 355), where falsehood,
fraud, and wilful imposition were charged, it was alleged
that the imposition was effectual. The minor in this
case did not allege any completed fraud, and consequently
did not answer to the principal charge in the major, how-
ever it might correspond to the aggravations set forth,
Avhich could not be regarded unless the principal charge
was relevantly, laid.
LoED MoNCREiFP. — The authorities do not come up
to the point pressed upon us. The objection resolves it-
AND CIRCUIT COURTS OP JUSTICIARY. 285
iself into this, that the attempted fraud was not success- No. 46.
George
ful. In judging of the relevancy, however, we must Kippen.
attend to the special circumstances of each case, and High Court.
examine the precedents in the same way. Now, here all ms.'
the overt acts set forth are said to have been committed Falsehood,
with a criminal intent, and for an unlawful design. This, ^^^^^' *"'•
in my opinion, is enough. No doubt, in the Jedburgh
case, it was alleged that the fraud was effectual, but then
the facts warranted the insertion of that allegation. But
that case did not decide that it must in all cases be
charged that success followed the criminal attempt, in
order to render the party amenable to the law. I do not
think it necessary ; and, indeed, in the case of M'lntyre
we have quite sufficient to warrant us in so holding.
Lord Cockbuen. — I concur in what has fallen from
Lord Moncreiff, and think this objection must be re-
pelled. I may add, however, that in this case there is
enough set forth to meet the argument of the prisoner's
counsel, even supposing it in all respects sound. It is
alleged that he formed a fraudulent purpose of obstruct-
ing or defeating diligence, at the instance of various par-
ties, and the modes by which he proceeded to carry his
intention into effect are set forth. It is also said that the
arrestment took effect, and thereby the obstruction, which
was his object, was completed, which is said to have been
to the lesion, injury, and oppression of the parties. I am
of opinion, on this ground, as well as on those stated by
Lord Moncreiff, that this objection must be repelled.
The LoED Justice-Cleek. — The objection only amounts
to this, that in all cases of fraud it is necessary to allege
that the attempt was successful. For the reasons given
by Lord Moncreiff, I do not concur in that view. It is
said that the minor answers only to the aggravations, but
this proceeds on a mistake of the meaning of the word
' especially,' as used in the major. Formerly the word
' particularly' would have been used. But though
• especially' is now the word employed, yet that does not
change the meaning of the libel. Practically, its mean-
286 CASES BEFORE THE HIGH COURT
No. 46. ingf is to set forth and define the particular mode in
George ° i i • •
Kippen. which the crime was committed, the law taking cogniz-
HighCum-t. ance that particular modes constitute substantive aggra-
Nov, 6.
1849." rations. Here, however, I think the fraud alleged is
Falsehood, shewn to havc been completed. The object was not to
*" ' "■ cheat any person, but to delay payment of a debt which
was due from him, by means of an unlawful device.
Everything necessary to this object is said to have been
done by him fraudulently and feloniously ; and as delay
was the object he wished, so it is said that delay was ob-
tained, as is alleged, to the injury and lesion of the cre-
ditors. In these circumstances, the objection must be
repelled.
Thei'eafter the pannel pleaded guilty to the third
charge, except in so far as related to the person of the
name of Burnside, and to the fourth charge, as libelled.
LoQAN" addressed the Court in mitigation of punish-
ment, and asked their Lordships to impose a fine, either
as the whole or part of the sentence.
The Lord Justice-Clerk. — In such a case as this, it
is altogether out of question to think of a fine ; and it is
of great importance that the public should know, that in
all such cases the Court will imprison or transport, and
not impose a fine. I remember that in the Glasgow
case, when we imposed a fine, which we were assured,
would be paid, the pannel got himself declared bankrupt
the day after.
In respect of the judicial confession above set forth,
the said George Kippen was sentenced to nine months'
imprisonment.
AND CIRCUIT COURTS OF JUSTICIARY. 287
WINTER CIRCUIT.
GLASGOW. ^]%l}-
Jvdges — Lokds Cockburn and Ivory.
Her Majesty's Advocate — Young A.D.
AGAINST
John Stevens — W. H. Thomson — A. B. Clark.
Murder. — Held, that it was not a good plea in bar of trial, that the
pannel had been tried and convicted of a simple assault in the Police
Court, for striking the same blows in respect of which he was
charged with murder.
John Stevens was charged with Murder : No. 47.
John
Stevens.
In so FAB AS, on the 17th day of November 1849, or on one or other -
of the days of that month, or of October immediately preceding, or of ja^^ii['
December immediately following, in or near the bouse in or near Bishop 1850.
Street of Anderston, in or near Glasgow, then and now or lately occu- Murder,
pied by Alexander Bobison, a bottle-blower or labourer, then and now
or lately residing there, in which house you the said John Stevens and
the since deceased Alice M'Donald or Stevens your wife, or with whom
you cohabited, then lodged or resided, you the said John Stevens did,
wickedly and feloniously, attack and assault the said Alice M'Douald
or Stevens, and did, with a poker or some other weapon to the prose-
cutor unknown, strike her one or more severe blows on or near the
head, whereby she was knocked down, and was mortally injured, and
died on the 30th day of November 1849, or about that time ; and was
thus murdered by you the said John Stevens.
On the diet being called it was objected in bar of trial,
that the pannel had been tried and sentenced in the Po-
lice Court, in respect of striking the very blows which
were said to have occasioned death in the present charge.
That constituted a res judicata, and if the public autho-
rities had been too precipitate in trying as a police oifence
what was ultimately found to be of a more serious cha-
racter, they must abide the consequence, and not the
prisoner, who had no control over their proceedings.
No. 47.
John
Stevens,
Glasgow.
Jan. 11.
18S0.
288
CASES BEFORE THE HIGH COURT
Young A. D. — The objection stated could not be sus-
tained after the judgment in the case of Cobb, High Court,
Nov. 21. 1836, Swinton, vol. i., p. 354.
Lord Cockbuen repelled the objection on the autho-
Murder. Tity of the case of Cobb.
The pannel thereafter pleaded Guilty of Culpable Ho-
micide.
In respect of which judicial confession, he was senten-
ced to be transported for life.
Jan. 3.
1850.
HIGH COURT.
Present,
The Lord Justice-Clerk,
Lords Mackenzie and Moncreiff,
Her Majesty's Advocate — £>eas A.D. — G. Young A.D.
Archibald Miller and Susan Brown or Miller — Logan — Shand.
Trial, bar of. — Opinion intimated, that it was not a good objection
in bar of trial, that the Procurator -fiscal had obtained information
from the pannel under a pledge that she should not be tried.
Outlawry. — Held, that an outlawry was recalled dejure by the Pub-
lic Prosecutor arraigning the pannel at the bar.
No. 48. Archibald Miller, a flesher, and Susan Brown or
■*^susan°'^ Miller, were charged with Using and Uttering, as
'^''^^''- genuine. Forged or Counterfeit Bank Notes ; as also
^'|^^<^°^'''- Theft, also Reset of Theft, and contravention of the Sta-
1850.' tute 45th Geo. III. c. 89 :
Forgery,
&c.
In so far as (1.), on the 5th day of March 1849, or on one or other
of the days of that month, or of February immediately preceding, or of
AND CIRCUIT COURTS OP JUSTICIARY. 289
April immediately following, within or near the dwelling-house, shop, No. 48.
or premises situated in or near Canongate, in or near Edinburgh, then gujan
or lately before occupied by you the said Archibald Miller aud Susan Miller.
Brown or Miller, or by one or other of you, and within or near the HighCourt.
dwelling-house, shop, or premises situated in or near High Street, in Jan. 3.
or near Edinburgh, then occupied by James Mackay, then a grocer and ! —
spirit-dealer there, and now or lately a prisoner in the prison of Edin- ^°^^^t
burgh, or within or near one or other of the said dwelling-house, shop,
or premises situated in or near Canongate aforesaid, and the said
dwelling-house, shop, or premises situated in or near High Street afore-
said, or at some other place or places in or near Edinburgh to the pro-
secutor unknown, you the said Archibald Miller and Susan Brown or
Miller, or one or other of you, knowingly or wittingly, had in your
possession or custody, or in your dwelling-house, outhouse, lodgings,
or apartments, situated in or near Canongate aforesaid, six, or thereby,
forged or counterfeited Bank of England notes for £I0 each, and each
bearing to be dated ' London 4 Oct 1848,' and to be subscribed ' For
' the Gov'' and Comp» of the Bank of England. J. Cann,' or one
or more of them, knowing the same to be forged or counterfeited, with-
out lawful excuse : Likbas (2.), time above libelled, within or near
the shop or premises situated in or near Leith Street, in or near Edin-
burgh, then and now or lately occupied by William Eutherford, then
and now or lately spirit-merchant there, and within or near the said
dwelling-house, shop, or premises situated in or near Canongate afore-
said, then or lately before occupied by you the said Archibald Miller
and the said Susan Brown or Miller, or by one or other of you, and with-
in or near the office or premises situated in or near Parliament Square,
in or near Edinburgh, then aud now or lately occupied by the Union
Bank of Scotland, or by the Banking Company carrying on business
under that or some similar denomination, or within one or more of
them, or at some other place or places in or near Edinburgh to the pro-
secutor unknown, you the said Archibald Miller, knowingly or wit-
tingly, had in your possession or custody, or in your dwelling-house,
outhouse, lodgings, or apartments, situated in or near Canongate afore-
said, two, or thereby, forged or counterfeited Bank of England notes
for £10 each, and each bearing to be dated ' London 4 Ocf 1848,' and
to be subscribed ' For the Gov' and Comp* of the Bank of England.
' J. Carin,' and bearing to be numbered respectively ' f^ 46506,' and
' -r^ 56045,' or one or more of them, knowing the same to be forged
or counterfeited, without lawful excuse : Likeas (3.), time above libel-
led, within or near the said shop or premises situated in or near Leith
Street aforesaid, then and now or lately occupied by the said William
Rutherford, and within or near the said dwelling-house, shop, or pre-
mises, situated in or near Canongate aforesaid, then or lately before
290 CASES BEFORE THE HIGH COURT
No. 48. occupied by you the said Archibald Miller and the said Susau Brown
&isan° or Miller, or by one or other of you, and within or near the office or
Miller, premises sijiuated in or near George Street, in or near Edinburgh, then
High Court, and now or lately occupied by the Commercial Bank of Scotland, or
Jan. 3. ijy tjig banking company carrying on business under that or some simi-
! lar denomination, or within or near one or more of them, or at some
■Forgery, ^^-^er place or places iu or near Edinburgh to the prosecutor unknown,
you the said Archibald Miller, knowingly or wittingly, had in your
possession or custody, or in your dwelliflg-house, outhouse, lodgings, or
apartments, situated in or near Oanongate aforesaid, two, or thereby,
forged or counterfeited Bank of England notes for £lO each, and each
bearing to be dated ' Loudon 4 Ocf 184S,' and to be subscribed ' For
' the Gov and Comp* of the Bank of England. J. Cann,' and to be
numbered ' j^ 54064,' or one or more of them, knowing the same to be
forged or counterfeited, without lawful excuse : Likeas (4), time above
libelled, within or near the office or premises situated in or near Par-
liament Square aforesaid, then and now or lately occupied by the Union
Bank of Scotland, or by the banking company carrying on business
under that or some similar denomination, you the said Archibald Miller
did, wickedly and feloniously, use and utter, as genuine, two forged or
counterfeited Bank of England notes for £] 0 each, and each bearing
to be dated ' London 4 Oct' 1848,' and to be subscribed ' For the
' Gov' and Comp* of the Bank of England. J. Cann,' and bearing to
numbered respectively ' -rr 46506,' and ' -j-, 56045,' you knowing the
same to be forged or counterfeited, by then and there delivering the
same, or causing the same to be delivered, to Robert Robertson Mur-
ray, then and now or lately a teller in the employment of the said
Union Bank of Scotland, or banking company carrying on business
under that or some similar denomination as aforesaid, and then and now
or lately residing with Mrs Ann Gray or Murray, in or near Lauris-
ton Place, in or near Edinburgh, or to some other person or persons to
the prosecutor unknown, in the employment of the said last-mentioned
bank or banking company, in order to be changed, you then and there
received in exchange for the same twenty pounds sterling, or thereby,
in notes of the said last -mentioned bank or banking company, or in
other genuine money : Likbas (5.), time above libelled, within or near
the office or premises situated in or near George Street aforesaid, then
and now or lately occupied by the Commercial Bank of Scotland, or
by the banking company carrying on business under that or some simi-
lar denomination, you the said Archibald Miller did, wickedly and
feloniously, use and utter, as genuine, two forged or counterfeited Bank
of England notes for £10 each, and each bearing to be dated ' London
' 4 Oct' 1848,' and to be subscribed ' For the Gov' and Comp» of the
' Bank of England. J. Cann,' and to be numbered ' -jj- 54064,' you
AND CIRCUIT COURTS OF JUSTICIARY. 291
Itnowitig the same to be forged or counterfeited, by then and there de- ^^"^^^^^
livering or presenting the same, or causing the same to be delivered or Susan
presented, to William Leckie, then and now or lately a teller or cashier 'Mmev..
in the employment of the said Commercial Bank of Scotland, or bank- High Court,
ing company carrying on business under that or some similar denorai- ^^50/
nation as aforesaid, and then or now and lately residing in or near —
Picardy Place, in or near Edinburgh, in order to be changed, and you °&eT^'
proposing to receive in exchange therefor twenty pounds sterling, or
thereby, in the notes of the last-mentioned bank or banking company,
or other genuine money: Likeas (6.), on the night of the 11th, or
morning of the 12th, day of September 1849, or on one or other of the
days of that month, or of August immediately preceding, or of October
immediately following, within or near the house situated iu or near
Blackfriars' "Wynd, in or near Edinburgh, then occupied by some per-
son or persons to the prosecutor unknown, and now or lately occupied
by Walter Sawers or Sayers, now or lately residing there, or at some
other place in or near Edinburgh, to the prosecutor unknown, you
the said Archibald Miller by yourself, or aided and abetted by two or
more females, or other persons to the prosecutor unknown, did, wick-
edly and feloniously, steal and theftuously away take, from or from
near the pocket or person of the Reverend William Anderson, then
and now or lately minister of the United Presbyterian Church at or
near Blalrlogie, in the parish of Logie, and county of Perth, and then
and now or lately residing there, a gold watch, the property, or in the
lawful possession, of the said Reverend William Anderson : Or other-
wise, the said watch having been, time and place above libelled, wick-
edly and feloniously, stolen by some person or persons to the prosecu-
tor unknown, you the said Archibald Miller did, time last above libel-
led, within or near the house situated in or near Paul Street aforesaid,
now or lately occupied byyou the said Archibald Miller, or at some other
time and place in or near Edinburgh, or elsewhere in or near the county
of Edinburgh, to the prosecutor unknown, wickedly and feloniously,
reset and receive the said stolen watch, you well knowing the same to
have been stolen.
Shand, on behalf of the female prisoner, objected in
bar of trial, that a pledge had been given to her by the
Procurator-fiscal, that, in reward for her giving informa-
tion, she should not be tried herself, and offered to prove
the fact by the examination of the fiscal.
Robert Dymock examined, deponed, I know the female prisoner.
She was examined as to the case of Mackay, which related to the
passing of the said bank-notes, which is the foundation of this charge.
She was asked if she would speak out in that case. She came back
292 CASES BEFORE THE HIGH COURT
A^ch.*and again ou the 10th of April, and said she could give no information.
Susan No declaration was taken from her as a witness.
Miller.
"'&"."*■ The LoED Justice-Cleek.— In having allowed this
^8^»- examination, we wish it to be understood, that we by no
Fo^ery, means intend to countenance the notion that the Pro-
curator-fiscal can, without authority, tie up the hands of
the Public Prosecutor. It is not the policy of the law to
give such a power to any inferior officer, and the parties
giving information to the Procurator-fiscal, must take
their risk as to any pledge he may be so ill-advised as, to
give.
After the examination of the first witness was closed,
the Public Prosecutor stated, that the outlawry formerly
pronounced against the pannel, Archibald Miller, remain-
ed unrecalled, and thereupon asked his counsel if he
moved to have the outlawry recalled.
Logan declined to make any motion to that effect.
Deas thereupon moved that the outlawry should be
recalled, and mentioned the case of Wilson, Glasgow,
7th April 1830 ; Bell's Notes, p. 228.
The Lord Justice-Clerk. — I am by no means satis-
fied with the decision in that case, and think we ought
to pronounce a special interolcutor here. The pannel
having known the objection all along, ought to have
stated it at the commencement of the trial, and cannot
take advantage of an objection now, which, if good at
all, would be in bar of trial, and I propose therefore
that we should pronounce a special interlocutor holding
the outlawry recalled de jure, by the public prosecutor
having put him at the bar, and allowed him to plead.
The other Judges concurred, and the following inter-
locutor was pronounced : —
' The Court held, that the sentence of outlawry refer-
' red to was dejure recalled, in consequence of the Public
' Prosecutor having allowed the pannel to plead to the
' indictment, and proceed with the trial, and found it re-
• called accordingly.'
AND CIRCUIT COURTS OF JUSTICIARY. 293
The case having proceeded, the Jury found the charge ^reh. and
against the female pannel not proven, and unanimously ^usan
found Archibald Miller guilty of the 3d and 5th charges High Court
as libelled. fgso.'
1 -J A X.' Forgery,
In respect of which verdict of assize, the said Arctii- &c.
bald Miller was sentenced to be transported for fourteen
years, and the said Susin Brown or Miller was assoilzied
simpliciter, and dismissed from the bar.
Present,
Lord Justice-Clerk, ^ .
Jan, 4.
1850.
Lords Moncreifp and Wood.
Her Majesty's Adyooate — Young A.D.
AGAINST
Hannah Mitchell — Boyle — Adam.
Evidence. — Held, distinguishing from the case of Maclure, Arkley,
p. 448, that a witness who had been present at the examination of
another witness, was not disqualified on the ground of partial counsel,
in respect tlat it appears he had not thereby been made acquainted
with any thing of which he was not previously aware.
No. 49.
Hannah Mitchell was charged with Child Murder, Hannah
as also Concealment of Pregnancy : — '" ^ '
° *' High Court.
Jan. 4.
In so far as, upon the 21st day of August 1849, or on one or other 1850.
of the days of that month, or of July immediately preceding, or of jjurder,
September immediately following, in or near the gig-house, situated Se-
near to the Manse of Rescobie, in the parish of Rescobie, and shire of
Forfar, and now or lately occupied by the Reverend David Esdaile, now
or lately minister of the parish of Rescobie foresaid, or at some other
place, to the prosecutor unknown, in or near the said manse of Res-
cobie, you the said Hannah Mitchell having been delivered of a living
male child, did, immediately or shortly after the birth of said child,
and place above libelled, wickedly and feloniously, strike the said child
several blows with your fist, or with some hard substance to the prose-
cutor unknown, or did otherwise bruise the said child, by some means
to the prosecutor unknown, on the head and face, to the severe injury
294 CASES BEFORE THE HIGH COURT
No. 49. of the aairl child, and did, in like manner, bruise or injure the neck of
Mitchell, the said child, and did break one of its lower jaw-bones, and did thrust
High Court. 7°^^ fingers, or some other substance to the prosecutor unknown, within
Jan 4. the mouth or throat of the said child to impede its respiration or stop
1_ its cries, and did thereafter leave the said child naked, and with the
Miwder, umbilical cord untied, in or near the gig-house aforesaid ; by all which,
or part thereof, the said child was immediately or speedily bereaved of
life, and was thus murdered by you the said Hannah Mitchell : Ok
OTHERWISE, time and place above •libelled, you the said Hannah
Mitchell did bring forth a male child ; and you did conceal your being
with child during the whole period of your pregnancy, and did not call
for and make use of help or assistance in the birth, and the said child
was afterwards found dead in or near the said gig-Louse.
During the trial, a witness of the name of Steele was
adduced in behalf of the Crown, who, being examined in
initialibus, deponed :
' I am a surgeon. I know Mrs Ayraouth, a midwife, but I am not
' her medical attendant. She was precognosced as to the facts dis-
' covered by her at the time the child was born in bed. This was on
' this day week. I was present at the time when she was examined
' by the Procurator-fiscal, and attended at his request. I heard the
' whole of her precognition. There was at that time apprehension of
' her being in danger. I was not present at a previous examination.
' She spoke to finding the after-birth and body in the gig-house, and
' their appearances. Can't say if she said that she examined the pri-
' soner. I think she advised her to go to bed. She said she found
' the child unwashed. I suggested no questions, and got no informa-
' tion at that time which I had not previously.'
Boyle requested to see the deposition of Mrs Aymouth,
which was allowed. He then objected that the witness
was incompetent, on the ground of partial counsel, and
submitted that the case was entirely governed by that of
Maclure, High Court, March 15. 1848 ; Arkley, p. 448.
The LoED Justice-Clerk. — I think this case differs
from that of Maclure in this respect, that it appears, as
well from the deposition of the witness that he did not
learn anything from the midwife on that occasion, of which
he was not previously aware, as also from the precogni-
tion then taken, that there was nothing spoken to more
than what was necessary for him to have known, in ordeF
AND CIRCUIT COURTS OF JUSTICIARY. 295
to give a medical opinion. Now, in the case of €uhitt, No^^9|^
what was put before him was the state of the bridge, Mitchell.
and its relative strength to bear the velocity of the en- HighCourt.
gine. He was therefore placed in the position of a jury- i85o.
man, and had the whole facts before him. The rule that Mulder,
excludes witnesses on the ground of partial counsel is
not a statutory one, which we are bound to enforce in all
cases ; and although there is no doubt this was a very
incautious proceeding, there was nothing ultroneous on
the part of the witness, as he went by order ; and as we
find that all he then heard was known to him before the
time he made his medical report, to which he is called
to speak, he could not have been biassed by what occur-
red on the occasion referred to, which was long thereafter.
Lord Moncreiff and Lord Wood concurred.
The case proceeded, and the jury found the pannel
guilty of concealment of pregnancy.
In respect of which verdict of assize, the Court sen-
tenced her to six months' imprisonment.
Present,
The Lord Justice-Clerk, I860.
Lords Moncreiff, Cockburn, and Wood.
Her Majesty's Advocate — Deas A.D. — Young A.D.
AGAINST
John Cameron — Dean of Faculty (M''Neill) — Neaves.
Criminal Letters — Double op List op Witnesses. — Held, lat,
That it was a fatal objection to criminal letters that the list of wit-
nesssea aj%>ended to the copy served, did not bear to be signed by
the Advocate-depute. 2nd, That, after a pannel had been declared
exempt from trial, on the above objection, he could not competently
be detained until fresh criminal letters could be served.
John Cameron was charged on criminal letters with no. so.
Murder :
John
Cameron.
In so PAR AS, on the night of the lUh, or morning of the 12th, day HighCoiu-t.
of August 1849, or on one or other of the days of that month, or of ^^^^'
Murder.
296 CASES BEFORE THE HIGH COURT
No. oO. July immediately preceding, or of September immediately following,
„ ''°^"' in or near Little Dovehill Street, in or near Glasgow, the said John
Cameron. • r- . ' _ ,. ij, » *
— Cameron did, wickedly and feloniously, attack and assault leter
"j^^^gil"'" M'Gill, since deceased, then or lately before a boot-closer, and then or
18S0. lately before residing in or near Little Dovehill Street aforesaid, with
Murder, his father, Thomas M'Gill,. a shoemaker, then and now or lately re-
siding there, and did, with a stick or some other weapon to the prose-
cutor unknown, strike him one or more severe blows on or about the
head or other part or parts of his person, whereby he was knocked
down, and did kick him when down, and did otherwise maltreat and
abuse him ; by all which, or part thereof, the said Peter M'Gill was
mortally injured, and in consequence died on or about the 16th day of
August 1849, and was thus murdered by you the said John Cameron.
Neaves objected in bar of trial, on the ground that there
was a discrepancy between the record and the copy served
on the pannel. The list of witnesses did not bear to be
signed by the pubUc prosecutor, whilst the principal
copy was so signed. It had been the immemorial prac-
tice to authenticate the list of witnesses and assize as
part of the record ; and by the act of adjournal 9th July
1821,^ it was required that full doubles must be served
^ ' That all parties accused shall be served with full doubles of their
' indictment on criminal letters to the will, of the list of witnesses'
' names and designations to be adduced against them, and of the list
' of the assizers' names and designations who are to pass upon their
' assize, with a short copy of charge subjoined thereto : That the afore-
' said full doubles and copies of charge shall be subscribed by the officer
' executing the same on each page, and the execution returned by him
' shall bear that they were so subscribed, and declare that it shall be
' no objection to such doubles that they are written bookways : And
' the said Lords do further declare, that all objections founded upon
' the alleged omission in the said doubles of any part of the record, or
' upon any discrepancy between the said doubles and the record, must
' be proposed before the Jury is sworn to try the case, with certifica-
' tion that no such objection shall thereafter be entertained : And
' further, the said Lords direct and appoint that the Sheriff and
' Sheriff-clerks of the several counties respectively, shall take special
' care that the doubles of all criminal libels, lists of witnesses, and lists
' of assizers to be served on parties accused, be accurately compared
' with the record in all respects, and written out in a clear and legible
' hand, before delivery to the officer for execution ; and shall further
' direct the said officer to subscribe each page of the said doubles, and
' to certify the same in the return of the execution of citation, in terms
' of this act ; for the exact performance of which duty, the Sheriff and
Sheriff-clorks are by law responsible.'
AND CIRCUIT COURTS OF JUSTICIARY. 297
on the pannels. The same objection had been sustained No.jS^o.
in former cases ; Hume, vol. ii., p. 247, and cases there camei-on.
cited: also p. 251, and cases there cited. It was the iiighComt.
latter case that led to the passing of the 9th Geo. IV., ]85o.
ch. 22, the 15th section of which act now regulated the Murdei-.
assize, but no alteration was thereby made in reference
to the service copy. Hume, who published the last edi-
tion of his book after the passing of that act, and Alison,
p. 320, both state that the list of witnesses served on the
pannel must bear that the original was signed by the
public prosecutor, and that it contains a correct copy of
his signature.
Young stated that the authorities quoted were all
prior to the 9th Geo. IV., and that, except the case of
Sutherlnnd, they were all cases in the Circuit Court ; and
that there were no means of knowing on what ground
the judgments were founded.
He admitted that the practice existed, but it was
necessary to look into the origin of the practice, because
there was room for drawing a sound distinction between
the case where a practice established a real privilege and
advantage in favour of the pannel, in which case it would
be incompetent to inquire into its origin, and the case
where the practice existed, not with regard to anything
substantial, in which case it could give no right, because
the public had no interest in its maintenance.
That in this case the practice existed with reference
to a matter quite immaterial, and was not founded on
any statute or act of adjournal.
The act 1672, c. 16, was the act by which the pannel
was entitled to a list of witnesses, and of the assize ; but
there was not one word of a copy there. Immediately
after the passing of that act, a number of objections were
stained by pannels, that they had not got proper lists Of
w^nesses, and three years afterwards another act of ad-
journal passed (1675), but in this act nothing was said
of a ' copy' being required. Then the question arose, if
the pannel was entitled to have more than the names of
witnesses. It was held that he was not only entitled to
298 CASES BEFORE THE HIGH COURT
No. SO. tlie names, but also to the designations. This shewed
Cameron, that a double was not what was originally intended, be-
High'com-t. cause the question if it was sufficient to give the names
Jan- 31- , , , . , 1 • rri
1850. only could not in that case have arisen. Ine same was
Murder, the case under the acts of adjournal 1803, 1818. The
act by which a copy was first ordered to be given, was
the act of adjournal 9th JulyJ.S21.
Hume (p. 251), in referring to the case of Highat,
gives as the reason for the objection being sustained in
these cases, that the pannel was entitled to believe that
witnesses were not properly cited. This argument would
not hold now, as by the act 9th Geo. IV., c. 29, ^ 10, it
was enacted that the objection must be before the jury
are sworn.
The pannel had no interest to object to the list of
witnesses not being signed. He had got a list of wit-
nesses, and no one not there could be examined against,
him. If the prosecutor was willing to take the risk of
witnesses attending, he might do so, but what was the
pannel's interest ? No witness could be added to the list
of witnesses in the pannel's possession. The check was
as complete as could be.
Lord Justice-Clerk. — If it is material to list of wit-
nesses that it be signed, is it not necessary to give copy
of this to the pannel ? In last act passed (1848), which
has marked application, there is a provision dispensing
with Judges' signature to the list of assize, but nothing
is dispensed with at all as to list of witnesses.
Young. — It was not essential that everything in the
principal should be given in the copy. Many things mate-
rial in principal need not be given in copy. It was mate-
rial that the foot of each page should be signed, but it was
not the practice to give the process copy of signature
at each page. Nothing was more material than the will
of criminal letters, but it was not necessary to give a copy
of it. The question arose in the case of Charteris (Hume,
p. 245), in which it was hfeld not necessary to give the
pannel a copy of it.
Lord Justice-Clerk. — The will is the diligence, and
AND CIRCUIT COURTS OF JUSTICIARY. 299
used to be separate from the body. It resembled the No-^^s^o.
old precept of a charter. Civmeron.
Young. — The will was a part of the letters. There Highcom-t.
could be no letters without a will. It was held iu that isso. '
case not necessary to give a copy, on the ground that it Murder.
was pure matter of form. This shewed that what was
material in the principal need not necessarily be given
in the copy ; and it could not be material for the pannel's
interest, that he should get the information that the list
of witnesses was signed by the prosecutor.
LoED MoNCREiFF. — I do not see how we can go against
what is admitted to be the practice.
Lord Cockburn. — It is perfectly clear that the pan-
nel is entitled to have served on him a copy of the list
of witnesses with the prosecutor's signature.
Lord Wood. — I think it unnecessary to say anything ;
the practice is quite conclusive.
Lord Justice-Clerk. — I entirely concur. The argu-
ment went only to shew that one of the reasons assigned
for the decisions quoted did not now apply. But there
is another important point in this case. By the second
branch of act of adjournal 1821 , Sheriffs are responsible
for this being done ; and I think that the attention of
the Sheriff of Lanark should be specially called to this
case.
The Court sustained the objection.
Deas moved the -Court, that the pannel might be de-
tained until fresh criminal letters could be served. The
statute 1701 did not prevent the prosecutor from again
serving the same letters, except the will. The will was
not incorporated as part of the letters. It was merely dili-
gence, and might be renewed as a re-service of an indict-
ment. It was an erroneous assumption that there was
no difference between defects of service and of substance.
Here the defect was one in service, rendering the pro-
cess void.
The Lord Justice-Clerk. — Then the worse executed
the better for you.
Deas. — No doubt. The question is one of process ;
300 CASES BEFORE THE HIGH COURT
No. SO. and I contend that there is no process here at which the
Cameron. Court Can look ; and as I propose to serve new letters
High Court, within forty days after the expiry of the letters of inti-
Ts'&o. ' mation, I am entitled to do so, as there was no good
Murder, citation before.
The Lord Justice-Clerk. — The act 1701 was passed
to prevent a long period oC imprisonment before trial,
and our duty is not to consider whether or not it is
stringent in its terms, but to construe it fairly between
the Crown and the subject. The point contended for
on behalf of the Crown is, whether there shall not be
twice forty days within which the pannel may be incar-
cerated on criminal letters. In this case the sixty days
after intimation expired, and then criminal letters were
used against the pannel, which, by the terms of the act,
expressly require the prosecutor to prosecute the same
to a final sentence within forty days, unless the delay be
on the application, or at the desire of the prisoner. To
adopt the construction contended for by the Crown would
be to neutralise all the provisions of the statute ; for if
that argument was correct, it would come to this, that
having served a bad libel, they might on the thirty-ninth
day serve a fresh one, and, by repeating the process,
postpone indefinitely the trial of the party. This would
defeat the purpose of the act, which was to prevent de-
lay, and fix the period within which the trial must be pro-
secuted to a final sentence, which is declared to be forty
days after the prisoner has been incarcerated on the cri-
minal letters. The act did not give any presumption of
innocence, but merely exempted from trial.
The other Judges concurred, Lord Cockburn remark-
ing, that unless that point was fixed, there was nothing
fixed in the law.
The application was refused;
In respect of which, the said John Cameron was de-
clared for ever free from the charge made against him,
and dismissed from the bar.
AND CIRCUIT COURTS OF JUSTICIARY. 301
Present,
The Lord Justice-Glerk, i'eb. 6.
1850.
Lords Moncbeiff, Cockbcrn, Wood, and Ivory.
Her Majesty's Advocate — Young A.D.
AGAINST
Catherine Crossgrove or Bradley — Aytoun.
Indictment — Relevancy — Theft. — Held that it was not theft in a
pawnbroker tojappropriate the articles which had been pledged
with her.
Catherine Crossgrove or Bradley was charged with No. 51.
™, « ^ Catherine
XUfit I Crossgrove
or Bradley.
In so far as, you the said Catherine Crossgrove or Bradley having, Hish Court,
during the period between the 1st day of January 1849 and the 22d laso."
day of October 1849, or part thereof, carried on business in or near "
Hamilton as a pawnbroker ; and various persons residing in or near
Hamilton having, at various times during the said period, deposited,
or caused to be deposited, with you there, sundry articles, their pro-
perty, in pledge or pawn, for advances of money made by you thereon,
and in particular (1.), John M'CuUoch, weaver, now or lately residing
in or near Grammar School Square of Hamilton, and Isabella Hamil -
ton or M'Culloch, his wife, or one or other of them, having, within or
near the house in or near Hamilton, then and now or lately occupied
by you the said Catherine Crossgrove or Bradley, on one or more oc-
casions during the period above libelled, deposited, or caused to be de-
posited, with you, in pledge or pawn, the articles specified in Inven-
tory No. I., hereto annexed, the property, or in the lawful possession,
of them, or one or other of them : And (2.), William Doolan, a pen-
sioner, now or lately residing in or near Grammar School Square
aforesaid, and Jean Hamilton or Doolan, his wife, or one or other of
them, having, place above libelled, on one or more occasions during
the period above libelled, deposited, or caused to be deposited, with
you, in pledge or pawn, the articles specified in Inventory No. II.,
hereto annexed, the property, or in the lawful possession, of them, or
one or other of them : And (3.), John M'Guire, now or lately residing
in or near Grammar School Square aforesaid, and Margaret Neilson
or M'Guire, his wife, or one or other of them, having, place above
libelled, on one or more occasions during the period above libelled, de-
posited, or caused to be deposited, with you, in pledge or pawn, the
articles specified in Inventory No. III., hereto annexed, the propertjr,
Theft.
302 CASES BEFORE THE HIGH COURT
No. i!. or in ihe lawful possession, of them, or one or other of them : And
Catherine ^^■^^ Alexander Cunningham, a chimney-sweep, then and now or lately
or Bradley residing at or near Old Cross, in or near Hamilton, and Jean M'Guire
HiehCom-t ^^ Cunningham, his wife, or one or other of them, having, place above
Feb. 6. libelled, on one or more occasions during the period above libelled,
^^^''' deposited, or cause to be deposited, with you, in pledge or pawn, the.
Theft, articles specified in Inventory No. IV., hereto annexed, the property,
or in the lawful possession, of them, or one or other of them : And
(5.), Agnes M'Donald or Morrison, now or lately residing in or near
Grammar School Square aforesaid, having, place above libelled, on one
or more occasions during the period above libelled, deposited, or caused
to be deposited, with you, in pledge or pawn, the articles specified in
Inventory No. V., hereto annexed, her property, or in her lawful pos-
session : And (6.), Agnes Mountain or Hendry, a widow, now or
lately residing in or near Grammar School Square aforesaid, having,
place above libelled, on one or more occasions during the period above
libelled, deposited, or caused to be deposited, with you, in pledge or
pawn, the articles specified iu Inventory No. VI., hereto annexed, her
property, or in her lawful possession : And (7.), Hugh Burns, now or
lately a dancing-master, and now or lately residing with Peter M'Guir-
lick, in or near Muir Wynd of Hamilton, and Agnes Trevier or Burns,
wife of the said Hugh Burns, or one or other of them, having, place
above libelled, on an occasion during the period above libelled, depo-
sited, or caused to be deposited, with you, in pledge or pawn, the ar-
ticle specified in Inventory No. VII., hereto annexed, the property,
or in the lawful possession, of them, or one or other of them : And
(8.), Janet Henderson, now or lately residing with John M'Kay, a
labourer, in or near Church Street of Hamilton, having, place above
libelled, on one or more occasions during the period above" libelled,
deposited, or caused to be deposited, with you, in pledge or pawn, the
articles specified in Inventory No. VIII,, hereto annexed, her property,
or in her lawful possession : And (9.), Margaret Burns or Burgoyne,
wife of John Burgoyne, an earthenware hawker, now oi^lately resid-
ing in or near New Wynd of Hamilton, and Margaret Burns or Bur-
goyne, his wife, or one or other of them, having, place above libelled,
on one or more occasions during the period above libelled, deposited,
or caused to be deposited, with you, in pledge or pawn, the articles
specified in Inventory No. IX., hereto annexed, the 'property, or in
the lawful possession of them, or one or other of them : And (10.),
Arthur Jack, a labourer, now or lately residing in or near Castle
Wynd of Hamilton, and Jean Jackson or Jack, his wife, or one or
other of them, having, place above libelled, on one or more occasions
during the period above libelled, deposited, or caused to be deposited,
with you, in pledge or pawn, the articles specified in Inventory No. X.,
hereto annexed, the property, or in the lawful possession, of them, or
one or other of them, you the said Catherine Crossgrove or Bradley
AND CIRCUIT COURTS OF JUSTICIARY. 303
did, on the 20th, 21st, or 22d day of October 1849, or on one or other No. SI.
of the days of that month, or of September immediately preceding, or Catherine
of November immediately following, the time not being more particu- or Bradley,
larly known to the prosecutor, within or near the house in or near „. , ^ j
Hamilton, then occupied by you, or at some other place or places in Feb. 6.
or near Hamilton, or elsewhere in the county of Lanark to the prose-
cutor unknown, wickedly and feloniously, steal and theftuously away Theft,
take, the various articles above libelled, specified in the ten inventories
hereto annexed: Likeas (11.), on the 18th day of October 184.9, or
on one or other of the days of that month, or of September immediately
preceding, or of November immediately following, within or near the
shop in or near Church Street of Hamilton, then and now or lately
occupied by James Hamilton, then and now or lately baker and grocer
there, you the said Catherine Crossgrove or Bradley did, wickedly and
feloniously, steal and theftuously away take, a bank or banker's note
for one pound sterling, or twenty shillings sterling, or thereby, in sil-
ver, the property, or in the lawful possession, of the said James Hamil-
ton : Likeas (12.), time last above libelled, in or near the shop or
premises at or near the Port Well of Hamilton, then and now or lately
occupied by Johu Prentice, then and now or lately publican there, you
the said Catherine Crossgrove or Bradley did, wickedly and felonious-
ly, steal and theftuously away take, fifteen shillings sterling, or there-
by, in silver, the property, or in the lawful possession, of the said John
Prentice, or Mary Hare or Prentice, his wife : Likeas (13), on the
20th day of October 1849, or on one or other of the days of that
month, or of September immediately preceding, or of November im-
mediately following, within or near the house in or near Church
Street, in or near Hamilton, then and now or lately occupied by John
Macpherson, bookbinder, then and now or lately residing there, you
the said Catherine Crossgrove or Bradley did, wickedly and feloniously,
steal and theftuously away take, a cloak, the property, or in the law-
ful possession, of the said John Macpherson, or of Elizabeth Rose or
Macpherson, his wife: Likeas (14.), time last above libelled, in or
near the shop or premises in or near New Wynd of Hamilton, then
and now or lately occupied by William Dougherty, then and now or
lately grocer there, you the said Catherine Grossgrove or Bradley did,
wickedly and feloniously, steal and theftuously away take, two shil-
lings and sixpence sterling, or thereby, in silver money, the property,
or in the lawful possession, of the said William Dougherty.
The case was called for trial at the Glasgow Winter,
Circuit.
Aytoun, for the pannel, having objected to the rele-
vancy of the indictment, in so far as the first ten charges
alleged that the crime committed by the pannel was
18S0.
Theft.
304 CASES BEFORE THE HIGH COURT
Oath r'' *^^* '^^ theft, Lord Ivory certified the case, which came
crossgrove ou to be argued of this date.
^ " Aytoun, for the pannel, objected to the first ten arti-
Feb. 6. ' cles, as laid in the indictment. It appeared therefrom,
_ that the property alleged to have been stolen had been
pledged with the prisoner. This was different from cases
where the mere custody was given for the purpose of
work being done thereon for the party by whom it was
delivered. There had been no decision holding it to be
theft to appropriate an article, in which a special pro-
perty had been given by the owner. The authority of
Baron Hume, vol. i., p. 59, was altogether opposed to
the present indictment.
Separately, the Pawnbroker act, 39th and 40th Geo.
III., cap. 19, sec. 24, contained a definition of the offence,
which was that of embezzlement, and that should have
been taken as the appropriate nomen juris by the prose-
cutor in the present instance.
Young, A.D. — There was no doubt as to the meaning
of the indictment. The pure question was, whether the
facts set forth justified the charge or not. No doubt the
authority of Baron Hume was against its being a case of
theft, but the answer to that was, that Baron Hume had
been over-ruled in modern cases, more especially in refe-
rence to his doctrine, that in order to constitute theft, it
was necessary that the first taking should be felonious.
Case of Brown, High Court, July 3, 1839. Swinton,
vol. ii., p. 394. In that case the question as to whether
there was any difference between the bare custody and
right of possession was discussed ; and, as he understood
the case, there was no distinction taken, particularly in the
opinion of Lord Moncreiff, as there reported, who used
the word possession throughout. The right given to the
pawnbroker by the pledge was quite as qualified and
conditional as the watchmaker, who had equally his right
to retain the property for work done.
The Lord Justice-Clerk. — A lien is not a pledge.
Young, A.D. — There was no difference as to this ques-
AND CIRCUIT COURTS OF JUSTICIARY. ,305
tion, which must depend on the right of the party to ^^°-^!-
vindicate the advance he had made, or his demand for re- Croaagrove
pairs done, and in which his right would be equally large. °I_I1 — ^'
£,, - , . , /. . . , , 1 High Court.
The act referred to gave no right or appropriation to the peb. 6.
pawnbroker, but only a right of sale. The question was,
could a pawnbroker steal goods which had been pledged
with him ? If he could, then undoubtedly the present
indictment must be sustained.
LoED MoNCEEiFF. — ^There is no doubt that this case
must turn on somewhat nice distinctions ; and the cases
which have been already decided, as to whether any par-
ticular species facti amount to embezzlement or theft,
are sufficiently puzzling ; but it appears to me that this
case differs from that of the watchmaker, which has been
cited in argument, and the analogous one of money
being entrusted to a messenger, to be carried to the
bankj and appropriated by the party on his way. In the
present case, the party who pledged the property, by
that act not merely gave a right of possession, but a title
to the goods themselves, which, by lapse of time, became
absolute, and enabled the party to sell, and give a valid
right to all the world. In this respect it was different
from any of the former cases relied on by the Crown.
Besides, the use of the word embezzlement in the statute
seemed to denote that the Legislature did not view the
case as one of theft ; and as it would be going farther
than any precedent, he was inclined to hold that the
facts alleged in the first ten articles did not support the
charge of theft.
Lord Cockburn. — It is with some hesitation that I
concur in the opinion just delivered.
Lord Wood. — I concur. I think the facts set forth
only justify a charge of breach of trust. If the argu-
ment for the Crown were sound, there could be no such
offence as breach of trust, inasmuch as to constitute that
crime there must have been an original lawful possession
given to the guilty party by the true owner.
Lord Ivory. — I concur on the grounds stated by
18S0.
Theft.
1850.
Theft.
306 CASES BEFORE THE HIGH COURT
No. HI. Lords Moncreiff and Wood. There is a great distinction
crosBgrove between a lawful possession de facto, and a legal posses-
or Bradley, ^j^^ profrio juTC. Here the latter was the right which
'leb.T."^ ■ the prisoner is alleged to have had, and it seems to me
. impossible to draw any distinction between the appro-
priation of the goods pledged, before the period when
the sale might lawfully' take place, or the proper title of
the pawnbroker, and his unlawful retention of any sur-
plus pence which might be realised thereby, over and
above the amount advanced, together with interest
thereon, at proper rates ; yet no one would undertake to
say that the latter case would be one of theft.
The Lord Justice-Clebk. — I concui* in the opinions
which have been delivered. Looking to the legal im-
port of the indictment, and the nature of the contract of
pledge, I think embezzlement or breach of trust is the
appropriate nomen juris in the circumstances. It is quite
different from those former cases, where only a limited
and temporary custody, unaccompanied with any title of
property in the things themselves, had been given, for
the purpose of having something done by the party who
committed the offence. In this case a contract is set
forth. It is for breach of that contract that the prisoner
is charged ; and I am of opinion that the criminal viola-
tion of a contract of trust constitutes the offence known
by us as breach of trust or embezzlement, and not that
of th^ft.
The objection to the relevancy of the first ten articles
was thereupon sustained.
On the motion of the Advocate-Depute, the Court
deserted the diet against the prisoner pro loco et tempore.
AND CIRCUIT COURTS OF JUSTICIARY. 307
John Lock and Patrick Do6len, Suspenders — Logan.
AGAINST
John Muik Steele, Respondent — Crcmfurd.
Suspension — Sentence. — Held that it was necessary that every sen-
tence should be signed by two Justices ; and a Note of Suspension
passed, in respect the sentence under review had been signed by one
only, although two were present when it was pronounced.
This was a suspension of a sentence pronounced in the j_ Lock\
Burgh Court of Airdrie, whereby the complainer was ^^ g°°gj°
sentenced to be imprisoned for a period of forty days, on High court.
a charge of having assaulted the police whilst in the ^«^-^6-
execution of their duty. ^ suspension.
The sentence was in the following terms : —
' Having considered the charge, with the evidence adduced, and
' heard the parties viva voce, find the charge proven, and that the said
' John Lock and Patrick Doolen are guilty as libelled ; and in respect
' thereof,' decern and adjudge the said John Look to be imprisoned in
' the prison of Airdrie, or any other legal prison within the county of
' Lanark, for the period of forty days from this date ; and the said
' Patrick Doolen to be imprisoned in the prison of Airdrie, or other
' legal prison foresaid, for the period of thirty days from this date.'
(Signed) ' Arch. Gerard, J. P.
' Robert Watt, C. D.'
The process was instituted under the 3d and 4th
Will. IV., ch. 108.^
1 By section 49. of this statute, it is enacted, ' That in all prosecn-
' tions against offenders for crimes committed within the Upper and
' Middle Wards of the said county, or within the said burghs of La-
' nark and Hamilton respectively, where the punishment shall not ex-
' ceed sixty days imprisonment in either of the said jails, or imprison-
' ment, accompanied with hard labour, for a period not exceeding sixty
' days, or the fine to be imposed shall not exceed £5 Sterling, the proce-
' dure against such offender may be of a summary nature, without any
' written pleadings ; and the Sheriff or Justices of the Peace of the
' said county, or the Magistrates of the said burghs, within their re-
spective jurisdictions, shall be authorised and empowered in all such
308 CASES BEFORE THE HIGH COURT
j^Locf & Pleaded for the Suspender — The statute gave power
p. Dooien both to the Justices of the Peace and the Sheriff to try
-^ — — the cause. No doubt the Sheriff alone might sign the
Feb.°6"'^ " conviction ; but if the proceedings were heard before the
'^^"^ Justices of the Peace, it required the two Justices to
Suspension. ^^^^^ according to the rule of the common law, whereas
the sentence and warrant were only signed by one.
Crawford, for Respondent. — It appeared by the re-
cord that two Justices were, in fact, present when the
cause was heard ; and it must be taken, from the terms
in which the conviction was framed, that both concurred
in the sentence.
The Court unanimously held, that, as by the common
law of Scotland it was necessary, not only that two Jus-
tices should be present at the hearing, but should also
sign the sentence, in case of conviction ; and in respect
that the present sentence and warrant of imprisonment
bear to be signed by one Magistrate only, the Court
passed the note of suspension with expenses.
John Leishman, W.S. — Wothekspoon & Mack, W.S., Agents.
prosecutions to hear parties and witnesses viva voce, and to award
such legal punishment as the crime requires, not exceeding that
herein prescribed, or to remit the case for investigation and trial in
any other legal form before a competent court ; provided always,
that in all such summary trials, a record shall be kept of the charge,
and of the judgment pronounced against such offenders, by the Sheriff-
clerk or his deputes, and by the Clerk of the Peace or his deputes,
for the county, and by the respective Town-clerks for the said burghs,
in a book to be kept in the form set forth in schedule (B) hereunto
annexed ; and the said Clerk of the Peace or hia deputes, and the
said Town-clerks, acting as legal assessors to the Justices and Ma-
gistrates respectively in such summary convictions ; and an extract
or duplicate of the entry in the said book, signed by the judge, and
by the clerk acting for the time, shall be the authority to the Magis-
trates having charge of the said respective jails, and their officers
and keepers of the said jails, for executing the sentence of each com-
mitment.'
Jan. 6.
J»oO.
AND CIRCUIT COURTS OF JUSTICIARY. 309
Present,
The Lord Justice-Clerk,
Lords Moncrbifp and Wood.
Her Majesty's Advocate — Deaa A.D. — J. M. Bell A.D.
AGAINST
Alexander Fraser Crawford — Shand and Macconochie.
Indictment — Relevancy — Threatening Letters. — Held, 1st, That
it was not necessary, in an indictment charging the sending of
threatening letters, to negative the truth of the charges therein con-
tained. 2nd, That the Veritas of the charges made could not be
proved, either in justification or mitigation, by the pannel.
Alexander Fraser Crawford, clerk or writer, was Aiex^l.
indicted and accused, That albeit, by the laws of this Crawford
and of every other well-governed realm, the wickedly, j^^''^™nd
maliciously, and feloniously. Writing and Sending, or Feb. u.
causing to be written and sent, any Threatening Letter, -^ — '—
particularly for the purpose of extorting money, is a ing Letters.
crime of an heinous nature, and severely punishable :
Yet true it is and op verity, that you the said Alexander Fra-
ser Crawford are guilty of the said crime, actor, or art and part : In
so PAR AS, on the 30th day of August 1849, or on one or other of the
days of that month, or of July immediately preceding, or of September
immediately following, within or near the house situated in or near
Potterrow, in or near Edinburgh, then and now or lately occupied by
Angus M'Kay, a type-founder, then and now or lately residing there,
or at some other time and place in or near Edinburgh or elsewhere to
the prosecutor unknown, you the said Alexander Fraser Crawford did,
wickedly and feloniously, write, or cause or procure to be written,
maliciously, a threatening letter, conceived in the following or similar
terms : —
' Mackays Lodgings
' 39 Potter Row 30th Augt ] 849
' Sir,
' After the many years I have been in your employment,
' and during which time I served you as faithfully as if you had been
310
CASES BEFORE THE HIGH COURT
No. S3.
Alex. F.
Crawford.
High Court.
Jan. 6.
1850.
Threaten-
iug Letters.
my own father, I have been at a loss to account for your very ex-
traordinary and unfeeling conduct towards me since I^eft you in
January last, and can now only account for that conduct as indi-
cating a wish on your part to withhold the £1000 you are due me
in terms of your bargain with me on the Sea Shore of Ardrossan in
the year 1835. I need hardly mention that that bargain (which I
have again and again asked you to implement) was, that I should
shew that the funds of John Crawford situated in Scotland were
equal to the payment of his Scotch debts. This you know I con-
vinced you of many years ago, and indeed had it not been for your
own grasp-all disposition the whole of the Scotch debts might have
been paid and settled during the year 1837, leaving a large reversion
in favour of your father-in-laws family. For this acting on your
part however I am not to blame and therefore I shall not submit to
the reason you have oft assigned for withholding from me the pay-
ment of this £1000. Namely that I was not only to make it clear
that the Scotch funds would pay the Scotch debts, but was to remain
perfectly teetotal during the time of my being occupied in bringing
out such a result. You know well that no such condition as the
second was ever mooted by you, and I have therefore now to state
that with the view of saving further discussion between you and me
I shall restrict my claim against you for this £1000 to £200, and
an assignation to the £100 due you by ray father, along with such a
character as my unswerving exertions for the benefit of yourself and
your father-in-law's family merits. If these conditions are refused
I shall then furnish a Copy of this Letter with the following infor-
mation to Messrs Jollie, Mr Hill, Mr Ranken, M' Balfour, Dr Ar-
thur, and to Messrs Stephen Rowan Crawford and Jas Crawford
through their agent here Mr Macrae, which will put your actings in
various ways in their proper light : —
' ist. Debts against John Crawford! s Estate purchased hy you.
' In you whole correspondence and in the whole proceedings before
the Court you have constantly alfirmed that these debts were not
purchased by you for the benefit of John Crawford's family, or
under any factory granted in your favor by your mother in law
Mrs Crawford. Both of these statements you know to be utterly
untrue as they were bought by you under and in virtue of a factory
granted to you by M" Crawford in the year 1833. This factory
tho' unrecalled you have taken care to keep out of view. The money
' you drew and have still to account for on account of these debts will
' do much more than pay the £1000 & interest due to M" Mollison's
• Trustees, as well as save some thousands to John Crawford's Estate
' being the interest still payable upon these debts for which you have
' no claim against his funds.
« 2n<i.' Vitiations made hy you in the Bill Booh, Day Books and
' Ledger! of John Crawford S; Co. in the year 1835.
AND CIRCUIT COURTS OF JUSTICIARY. 311
You are aware that after proceedings were adopted in Court by No. S3.
Mr George Boyd Hay, by M™ Bonn, by Stephen Eowans Ex'ors ^^i^^_
and others, you founded on the alterations so made as if they had ■
been done at or about the time of John Crawford & Cob Bankruptcy jan. g.
in 1816. These you know I can easily point out. This conduct I860,
without any advice from me the Creditors referred to will know how Threaten-
to appreciate after these facts are made known to them. '°S Letters.
' 3rd. John Crawfords Ledger.
' You also know that the Accounts of Mr John Cumraing and of
Stephen Rowan in this Ledger were altered by you with the view of
preventing these parties from getting payment of two promissory
notes due to them by John Crawford, the one for £500, the other
for £2500. In this attempt you have hitherto been successful, but
will be so no longer after the facts now stated are made known to
the parties interested.
' 4tli. Interlocutor of 7th March 1835,
' You are aware that you altered this Interlocutor with the view of
making it appear that the dividend which it ordered was a fixed one
of 14/ per pound, instead of a general payment to account under cer-
tain conditions. The serious nature of this offence yon know too
well to require my dwelling upon it.
' 5th. _4j to the £1000 guaranteed hy you to M'>'> Mollison's
' You are aware that in your examination in reference to this debt
' you gave your oath before the Commissioner that you did not know
' where the original agreement between these Trustees Mr Wilson and
• yourself was, altho' I had previously shewn you that it was in the
' hands of Mr Patrick W.S. You also swore that you had produced
' to the Commissioner every Letter connected with your liability for
' this £1000, knowing well that many of the most important Letters
' were kept back by you. •
' 6th. Bond/or £2000 by M'' Charteris in favour of your mother
' in law M" Crawford.
' You have alleged to her family that you uplifted this sum and
' interest with her consent, and that you afterwards accounted there-
' for to her, knowing both of these statements to be untrue. Neither
' Mrs Crawford nor M' Wilson who you say got the money was
' aware of where it came from altho' you no doubt wrote Mr W. that
' you had to borrow money to oblige him, but from whom you have
• never yet stated in so far as know.
' 7th. Factory granted to you by Mr> Crawford in 1 836.
' You have ever since Stephen Crawford's return in 1838, stated
' this factory to be the first, — knowing as already stated that this
' statement was untrue. This factory of 1836 was as you know a
' mere nominal matter, being executed to prevent John Crawford'a
X
312 CASES BEFORE THE HIGH COURT
No. S3. ' Creditors from appointing a factor in the room of Mr M'Lachlan
Cra^wford. ' ^^^^ ^^'^d in that year.
^. ^^^^^ ' 8th. Mrs Crawford's Trust Deed of 1833.
Jan. 6. ' You know that in the whole proceedings which have taken place
18S0. i JQ Court in regard to this Deed, you have held it up as an existing
Threaten- ' document, notwithstanding the fact that you gave up every right you
ing Letters. , ^ja^ ^j^^gj, j^^ ^^ ^^jj ^^ ^„ Wilson. This is proved by your Letter
' to that gentleman in 1839. In these proceedings you have also
' stated that the addition made to this Deed after your wife's death
' was suggested and prepared by Mr Patrick, while you know well
' that this is an utter untruth. They were suggested and prepared by
' the late Mr James Donaldson, as his Letter to you, but which you
' have hitherto concealed, will prove.
' 9*. Chancery Money.
' You know that in accounting for these funds you have brought
« against them upwards of £8000 for my labour from the year 1835
' to 1843 for which you have no legal claim, — Altho' you promised
' to me that I was to receive a per centage on the amount of my said
' labour, which like your other promises I am of opinioa you had no
' intention of keeping when you made it. But be this as it may, I
' contend you cannot bring against these funds more than you actually
' paid to me during the period stated, which will not amount to more
' than £800. You can farther have no claim for the £4000 odd you
' charge as commission for the drawing these funds. The mode in
' which you are bound to make your charges against this money is
' established by your account which Mr "Wilson docquetted in June
' 1835.
' 10. Your Manifold Writer.
' You have again and again all but affirmed that Mr Stephen
' Rowan Crawford had stolen this useful apparatus out of your writing
' room and had thereby become possessed of, and kept up Letters
' which you had written to your mother in law, giving her as you
' alleged States or Memoranda of how you had expended the money
' you drew from Chancery. Now the truth is that that manifold
' writer was in the hands of your own family — and that every Letter
' it ever contained were returned to you in the packet about which
' you made such a noise and incurred so much expense, — but still not
' one of these Letters gave any information to Mrs Crawford or to any
' one else as to how you had expended the Chancery money — Altho'
•' I believe a part of it crossed the Atlantic and another part of it pur-
' chased a House in James Square, but as to which I shall, in the
' meantime, say no more, — though I beg of you not to suppose that
' such is not fully in my power.
' Before making any communication to third parties (except to
' your Agent M' James Macknight) on the subject of this Letter I
AND CIRCUIT COURTS OF JUSTICIARY. 313
' shall wait till .the forenoon post of Monday first for your reply. If No. S3.
' I do not hear from you by that time you will have yourself for my Q^^^g^^^
' then following the line of conduct I have stated in a previous part of High Court.
' this Letter. Jan. 6.
' I am Sir ^850.
' Your mo obed' servant Threaten-
' Alex. F. Crawford.' i"g Letters.
and you did, time and place aforesaid, address, or cause or procure to
be addressed, the said letter, at the end thereof thus : —
' ToWmCrawfurdEsqr ^
' of Cartsburn' J
which letter was meant and intended by you for William Crawfurd
of Cartsburn, then and now or lately residing in or near Bellevue
Crescent, in or near Edinburgh : Farther, time above libelled, within
or near the house situated in or near Bellevue Crescent aforesaid, then
and now or lately occupied by the said William Crawfurd, you the
said Alexander Fraser Crawford did, wickedly, maliciously and feloni-
ously, leave or deliver, or cause or procure to be left or delivered, the
foresaid threatening letter, addressed as above, with some person or
persons to the prosecutor unknown, then and now or lately in the ser-
vice of, or residing with, the said William Crawfurd, for the purpose
and with the intention of the said letter being delivered to the said
William Crawfurd ; and the said letter was, on or about the following
day, or within some short period thereafter, received by the said Wil-
liam Crawfurd ; and all this you the said Alexander Fraser Crawford
did for the purpose of extorting money from the said William Craw-
furd : LiKEAS (2.) on the 10th day of September 1849, or on one or
other of the days of that month, or of August immediately preceding,
or of October immediately following, within or near the foresaid house
situated in or near Potterrow aforesaid, then and now or lately occu-
pied by the said Angus Mackay, or at some other time and place in
or near Edinburgh or elsewhere to the prosecutor unknown, you the
said Alexander Fraser Crawford did, wickedly, maliciously, and felo-
niously, write, or cause or procure to be written, a threatening letter,
conceived in the following or similar terms : —
' Mackays Lodgings 39 Potter Eow
' September 10th 1849
' Sir
' I received your Letter of the 5'h Instant the contents of
' which do not surprise me as any one who had been guilty of the de-
' ceipt and duplicity exposed in my communications to you can very
' well afifbrd to deny and apparently reprobate any truth. In that
' Letter you state that my communications to you aud to your Agent
' created sarprise and indignation. That they may have surprised
' your Agent I can well believe, but that they surprised you I have
314 CASES BEFORE THE HIGH COURT
No. 53. ' no hesitation in saying that this could only have arisen from your
Crawford ' I'^^'Dg thought I would never reveal under any circumstances what
' I state in my Letter to you ; or you must have laboured under a very
HighCourt. , ."'.•'„'•'„ „ . ^
Jan. 6. strange misconception of the extent oi my recollection.
18S0. ' I gijall now shew you that if what I state is calumnious, it is not
Threaten- ' the less true, and that it is in my power to prove these allegations.
ing Letters, i gyj. before doing so I beg to premise that I am neither actuated by
' ingratitude, nor by anything dishonourable, altho' you negative my
' allegation as to your promise of £1000 to me God and your con-
' science best knows that you did make that promise, and the reason
' for your doing so was very plain, viz., that you wished to have the
' whole Chancery money for division among yourself and your Father-
' in -law's family. Mr Wilson as you know was willing to give up-
' wards of £8000 (Marryats dividends) to insure this result.
' The first of my allegations is that you under a factory of 1833
' purchased up the debts against Your Father-in-law's Estate. If
' you refuse to produce this factory I have a copy of it in my posses-
' sion. I presume you will hold this as sufficient evidence to substan-
' tiate the truth of this allegation.
' 2nd & S^d. The Books referred to and the Report taken by
' Mess" Jollie on these Books, by two eminent Accountants will
' prove these.
' 4*. As to the Interlocutor of 7"» March 1 835, will be proven by
' that paper itself, and by what you will no doubt recollect of my
' having mentioned to you about it 18 months ago that Mr Henry
' (Jollies Clerk) threatened me with criminal proceedings as to this
' very alteration.
' 5tli Is regarding the £1000 you guaranteed to MoUison's Trustees.
' that your Oath in this Case was inconsistent with truth I need only
' refer to your Deposition in which it will be seen that yon distinctly
' swore that you did not know where the original agreement was,
' altho' as I again repeat, I pointed out to you in the copy Inventory
' of original papers handed over by you to M' Patrick that that docu-
' ment was in his possession. 'That you kept back letters of the utmost
' consequence against yourself will in this Case be proven by the
' letters so retained
' 6*. As to Charteris' Bond. The Discharge you granted for this
' Bond will shew I have no doubt that yon uplifted the money under
' M" Crawford's factory of 1833, — and I defy you to shew that
' Mrs Crawford was aware you did so, or that you ever accounted to
' her for a penny of the money. Every Shilling you gave her was
' under the Agreements between you and her. This is proved by the
' Agreements which were prepared by M"" Donaldson in the year
• 1 833, and Copies of which were sent to M' Wilson to London in
' that year. The various discussions between you and him on this
' Subject were too long for my here detailing them. They are fully
ANli CIRCUIT COURTS OF JUSTICIARY. 315
' detaikd however in the Correspondence between him and you a large No. S3.
' proportion of which has not even been seen as yet by your own Crawford.
' Agents. I also defy you to produce a Discharge by M™ Crawford ' .
' for this money, or the scrape of a pen that she was aware you had jan. 6.
' uplifted it much less that you had given her any account of it. ^'^^O-
' The 7'^ requires lio proof further than what I have already stated Threaten-
' and the Letters which were written to you by M' M'Naught and '°S Letter.
' Mess" Jollie.
' 8* Is regarding Mrs Crawford's Trust Deed of 1833. I have
' only again to refer to your Letter to Mr Wilson in Deer 1839 and
' to Mr Wilson's Letter to you brought to this Country by Mr Stephen
' Rowan Crawford in Nov' 1838.
' 9* Is as to bow you accounted for the Chancery money. My
' Proof on this subject is the Accounts for my labour made by you
' and your general Account against these funds, a copy of which is in
' the possession of Mr James MacKnight. I am now preparing and
• will soon have ready a State of what that Account should be. It
' will shew that Mr Stephen Eowan Crawford was not far wrong in
' the sum he held you to be due to his father's Estate.
' As to the 1 Otli allegation, I beg to refer you to my own family
■ who know something of the matter. As to the money that crossed
' the Atlantic I allude to a man in New York taking the name of
■ Alexr Watson though his proper name is Alex' Waugh. This
' man as you well know left Edinburgh charged with embezzling a
large proportion of the City funds, and hence the cause of his chang-
ing his name even when he reached America. You have the merit
of not only communicating with this man, but in trusting to his care
a part of the Chancery funds, and as to the house you purchased in
James Square, it was for the benefit of the sister of this very man,
and who is still kept by you in East Broughton place, and in whose
company you know you' have spent nearly every night for many
years past. I can add much to this when I choose, but have no wish
to do so.
' I have now shewn you whether the statements I have made against
you are calumnious or not, and as to your allegation that I wish to
extort money from you, I, to use your own expression, utterly de-
spise such an insinuation. I have only asked you to fulfil in part a
promise solemnly given by you to me, and which I never thought
you would deny, otherwise you may rest assured I would never have
spent so many fruitless years in your employment. Ingratitude can-
not therefore rest with me. You pocketed thousands while you paid
me with hundreds. You are now only acting however in the way
I have been told even by your own friends and relations you would
if I had not black and white upon any bargain I had with you. In
addition to the statements I have already made I have still one as
grave as any of the rest — namely — that you in the year 1838 got
316 CASES BEFORE THE HIGH COURT
No. 53. ' me to obtain for you a Notarial Copy of your Marriage Contract,
Alex. F. i Ti^iiici, copy in place of being made from an original was made from
— : ^ ' one given to me by yourself — The Copy you so obtained as I believe
Jan.'e. " ' y^^ produced in the Court of Chancery. The proof of this is your
.1850. ' own son M^ Thomas, M' Swanston the Messenger in Edinburgh, and
Threaten- ' the Witnesses who signed the Notarys false Certificate.
ing Letters, t j^g J ]jaye now given you the proofs of my allegations, I again re-
' peat that I have no wish to expose these, nor will I do so, if you will
' do me anything like justice — if not you leave me no other alterna-
' tive but to seek redress as I best may.
' You charge me with innumerable irregularities, broken promises,
' and oaths, but had you had even a spark of honor you would have
' ejtplained what you meant by these expressions. They merely
' amount to this that I sometimes got the worse of drink, and nothing
' more. "When I made these promises they were made in good faith,
' and would have beeu kept had it not been for the dreadful life my
' wife and family made me live at home.
' If I do not hear from you either through a private channel or
' otherwise by Tuesday first (to morrow) I shall then make use of mj
' information in whatever way I think fit.
' I am,
' Sir
' Your obed' Serv'
' Alex. F. Crawford.'
And you did, time and place last above libelled, address, or cause or
procure to be addressed, the said last-quoted letter, at the end thereof,
thus : —
' Wm Crawfurd Esq
' of Cartsburn
' 5 Bellevue Crescent,'
which said last-quoted letter was meant and intended by you for the
said William Crawfurd : Farthek, time last above libelled, within or
near the said house, situated in or near Bellevue Crescent aforesaid,
then and now or lately occupied by the said William Crawfurd, you
the said Alexander Eraser Crawford did, wickedly, maliciously, and
feloniously, leave or deliver, or cause or procure to be left or delivered,
the foresaid threatening letter last above libelled, addressed as above,
with some person or persons to the prosecutor unknown, then and now
or lately in the service of, or then residing with, the said William
Crawfurd, for the purpose and with the intention of the said letter last
above libelled being delivered to the said William Crawfurd ; and the
said letter last above libelled was, on or about the said last-mentioned
date, or within some short period thereafter, received by the said
William Crawfurd ; and all this you the said Alexander Eraser Craw-
ford did for the purpose of extorting money from the said William
Crawfurd.
AND CIRCUIT COURTS OF JUSTICIARY. 317
The counsel for the pannel objected to the relevancy No. 53.
of the indictment. The major must be taken to be one Crawford.
substantive charge, and read altogether. The word High Court,
particularly not being inserted for the purpose of charg- iTs'o.'
ing an aggravation merely, the allegation was, that the Threaten-
pannel had been guilty of sending threatening letters for "^ ^"*™'
the purpose of extorting money.
This was admitted on behalf of the Crown.
It was then objected, that the minor did not answer to
the charge there made. It was said that the letters
were written for the purpose of extortion, and the in-
dictment was open to two objections. 1st, That it did
not negative the truth of the charges made in the letters
against the party to whom they were sent ; and, 2dly,
It did not deny that the alleged debt claimed therein
was due. All the precedents of indictments for sending
threatening letters, imputing offences, had negatived the
truth of the statements contained therein, by setting
forth, at the end of the minor, that the pannel knew the
statements in the letters to be false (case of Ledingham,
Aberdeen, April 14. 1842 ; Broun, vol. i. p. 254.) Not
having negatived the truth of the charges contained in
the letters, the pannel was entitled to assume that the
allegations he had made therein, as to the conduct of
the party to whom they were sent, were true, and that
he would be able to substantiate their verity on the
trial. But,
2dly, It was alleged that these charges were made for
the purpose of extorting money, whilst the indictment
did not negative the allegation of a just debt contained
therein. Extortion could not be the obtaining of money
due, by whatsoever means. As used in a criminal sense,
it must signify an endeavour to obtain, by means of
threats, money to which the party had no right. In the
statute 7th and 8th Geo. IV. cap. 29, section 8,' which
1 By the 7th & 8th Geo. IV. 0. 29, § 8, it is enacted, ' That if any
' person shall knowingly send or deliver any letter or Trriting, de-
318 CASES BEFORE THE HIGH COURT
Aiek'l' formed the code of England applicable to the sending of
Crawford, threatening letters, it was required that the party should
" jan'^e"'^'' ^^^^ ^^^^ ®° without reasonable or probable cause ; and
i"^o- in the case of the Queen v. Mein (I Cox, Criminal Cases,
Jhreate^- p. 22, Tyndal, C. J.), held, that on the construction of
the statute, the Jury must be satisfied, before they could
convict, not only that the party had no reasonable or
probable ground in law to make the demand, but that
she believed that she had none such at the time of
writing the letter. Such was the construction put
thereon by the text writers on English law, Russell on
Crimes, vol. ii. p. 709, et seq. This was analagous to
what was required in Scotch law, in cases of reset of
theft and otherwise, where guilty knowledge must be
averred.
Deas. — The last objection was sufficiently answered
by all the precedents which were in the form which had
been adopted in the present case, concluding that all
was done for the purpose of extorting money. That was
reasonable ; for even should it be proved that there was
a just debt owing to the party who sent the letters, the
law would not allow such a mode of enforcing payment,
as threatening to accuse the debtor of heinous or in-
famous offences, in case payment was not made by the
time he appointed. It was the preferring of such
' manding of any person, with menaces, and without any reasonable
' or probable cause, any chattel, money, or valuable security; or if
' any person shall accuse or threaten to accuse, or shall knowingly
' send and deliver any letter or writing accusing or threatening to
' accuse, any person of any crime punishable by law with death, trans-
' portation, or pillory, or of any assault with intent to commit any
' rape, or of any attempt or endeavour to commit any rape, or of any
' infamous crime, as hereinafter defined, with a view or intent to ex-
' tort or gain from such person any chattel, money, or valuable security;
' every such offender shall be guilty of felony, and, being convicted
' thereof, shall be liable, at the discretion of the court, to be trans-
' ported beyond the seas for life, or for any term not less than seven
' years, or to be imprisoned for any term not exceed four years, and,
' if a male, to be once, twice, or thrice publicly or privately whipped,
' (if the court shall so think fit), in addition to such imprisonment.
AND CIRCUIT COURTS OF JUSTICIARY. 319
charges that was the substantive matter of offence, and No. 53.
. « Alex F
that was totally irrespective of the right to demand pay- Crawford.
ment in a legal way. The matters of which the party High Court,
was accused in the present case were of the most heinous ''isso'
description, not only sufficient to destroy character, but Threaten-
which would, if proved, subject him to heavy criminal '"s betters.
penalties.
The other objection, that the indictment did not nega-
tive the truth of the charges made, was important, and
the present indictment had been drawn after grave con-
sideration. There was no direct authority as to whether
there was any necessity for so negativing the truth of
the charges, though he would admit that the prece-
dents did negative the truth.
The Lord Justice-Clerk. — Are we to assume that
the charges are false, without your having stated them
so to be ? Take the charge of having altered an interlo-
cutor. The pannel may prove that such alteration took
place.
Deas. — It is not the same thing to say that T must
set forth that the charges were false, and that I must
prove them to have been so.
The Lord Justice-Clerk. — If it would be a good
defence to prove the Veritas, surely you must negative
it in the charge.
Deas. — The judgment to be pronounced will enter
very deeply into the question, as to whether the pannel
could lead evidence to support the truth of his accusa-
tion.
The Lord Justice-Clerk. — It is very proper that you
make that suggestion. I think that in giving you an
interlocutor of relevancy we should absolutely decide
the point, that the party could not lead evidence as to
the truth of the charges he made. In the case of Pater-
son, High Court, November 8. 1843 ; Broun, vol. i.
p. 629, after an interlocutor of relevancy, to which the
party made no objection, he wished, in his address to the
Jury, to have demonstrated the untruth of several passages
\
320 CASES BEFORE THE HIGH COURT
No. 53. of the Bible, but the Court refused to allow him to do
Alex. 1. . ^ J J •
Crawford. SO after that interlocutor had been pronounced ; and it
High Court, is the great advantage of the interlocutor of relevancy
1850.' in the law of Scotland, that what is alleged in the
Threaten- major is thereby fixed to constitute an offence which
mg Letters. gg^jjjjQ^ thereafter be redargued.
Deas. — It was not necessary to prove falsehood, and
therefore it was not necessary to set it forth. And, 2dly,
the truth or falsehood of the accusations made had no-
thing to do with the offence. The pannel had not said
in his letter that he would inform the public authorities.
All the parties named were private individuals. This
was an attempt to compound justice, which was criminal
in itself. If the pannel could enter into a proof of the
Veritas of his charges, every man would be liable to be
put upon his trial for the most heinous offences, if any
such should be imputed to him by parties who had
threatened him with exposure. That would be contrary
to the spirit of the law. It would also be inextricable
in practice, as a counter-proof would then be necessary,
and the effect would be, to place every person to whom
a threatening letter was sent, in such a position that he
would have no alternative but pay money rather than
pass through so painfiil an ordeal. In so far as the
English decisions on the statute referred to threw any
light on the subject, they were in favour of the construc-
tion contended for on behalf of the Crown. In the case
of the Queen v. Hamilton, 1 Carrington and Kirwan,
p. 212, Rolfe B., held it to be immaterial whether the
charge contained in the letter was true or not. This
was an interpretation of a statute wherein to constitute
guilt, want of reasonable and probable cause was re-
quired, and must be considered as having been adopted
as being most in accordance with the common law,
which interpreted the want of reasonable and probable
cause to thfe obtaining of the money only, and not to the
preferring of the charges contained in the letters.
The Court having considered for some time.
AND CIRCUIT COUETS OF JUSTICIARY. 321
The LoED Justice-Clerk said, it is unnecessary for ^°^J^p_
us to deliver opinions in this case, as we think that the Crawford.
indictment might be much improved as regards one of ^'siiCouit.
the objections, namely, that it does not negative that the iss'o.
debt claimed in the letter was a iust demand. We Threaten-
1.11.1 111 !•• loii . 1 ing Letters.
think this should be more distinctly set forth than m the
present indictment, either by a distinct negative in toto,
or by stating that the amount demanded was greater
than any sum acknowledged by the party from whom it
was claimed, or that it was not constituted, or that it
was compensated by counter demands, or in any other
similar manner shew that the party had no right to
instant payment ; but we don't decide that such an
amendment would entirely remove the objection. As to
the second objection we give no opinion whatever. If
the Crown wish the question to be settled, they will con-
sider whether they should frame any other indictment
in a corresponding manner. If the question arises, pro-
bably the whole Court will consider the matter, when
that judgment will be pronounced which seems most
consistent with the general law of the land.
On the motion of the Advocate-Depute, the Court
deserted the diet against the pannel pro loco et tempore.
Thereafter, of this date, the pannel was again indicted Feb- h.
on a libel containing the following addition to each
charge : —
' You well knowing that the money of which you demanded pay-
' mqnt from the said William Crawfurd as aforesaid was not justly
' due by him to you, or was not admitted by the said William Craw-
' furd to be justly due by him to you.'
The arguments were substantially the same as on the
former occasion. '
The Lord Justice-Clerk. — This case is most import-
ant, in respect of both the objections which have been
taken to the indictment. I apprehend that those objec-
322 CASES BEFORE THE HIGH COURT
No. 53. tions are connected more than has been assumed in the
Alex. F.
Crawford, coursc of the argument ; and I think the reasons which
HighCourt. apply t© the repelling of the first objection have equal
18S0. ' application to the second, as to the necessity of aver-
Threaten- ring the falschood of the accusations threatened to be
ing Letters. ,
made.
The true question is, what is really the essence of the
crime that is charged in the major, under the circum-
stances ? No objection is taken to the major in this case.
On the contrary, it is admitted to be good, and both ob-
jections resolve themselves into this, that the minor does
not come up to it. To my mind, the argument is falla-
cious. The act of sending a threatening letter, for the
purpose of getting money, instead of resorting to due
form of law in order to its recovery, is the crime. Every
man has a right to make his answer in a court of law to
all demands made against him, whether the Court thinks
his case good or not ; and the only punishment that can
be awarded against him, if his case be bad, is to subject
him to costs, and, in special classes of cases, he may be
liable in damages ; but before the case is tried in form
of law, no assumption whatsoever can be made on the
justice or injustice of his resisting a demand. If it were
necessary, in the case of a threatening letter, to shew the
mala fides of the party in making the demand, to convert
which into payment is the object of the letter, it would
exoner all persons in sending threatening letters ; for it
would be scarcely possible to shew that such party did
not entertain a strong belief that his demand was just.
The more wrongheaded the party, the more would he
believe that he was an injured man, and that his demand
was just. To require it to be averred that he had no be-
lief in the justice of his claim would therefore, in my
opinion, be absurd. The crime consists in using the
threat to concuss a person into paying a demand which
he intends to resist ; and the crime, the use of the threat
for that purpose, is the same, whether the party using
the threat thinks his demand good or bad.
AND CIRCUIT COURTS OP JUSTICIARY. 323
The second objection is, that the indictment does not ^^^^^^^
aver that the accusations contained in the letter were Crawford.
false, and known to be false. The first point here is, ^^^^'J,*^"'''"
whether there is any such practice in the style of indict- isso.
ments as to create a presumption in favour of the neces- .Threaten-
^ ' ing Letters.
sity of this averment in the indictment, as necessary for
the relevancy of the indictment. In the case of Leding-
hame, the circumstances perhaps might be thought to
justify the prosecutor in disproving the charges contained
in the letter ; but the style adopted in that indictment,
instead of being an ordinary one, is quite opposed to the
common form, and was, I believe, now causelessly so. In
the case of Murray, tried at Perth in 1820, where the
party was transported for seven years, the indictment did
not negative the truth of the charges contained in the
letter. No doubt there were in that case threats of per-
sonal violence, which made it less important that the
truth of the accusations should be denied ; but in the
case o{ Millar, in 1831, for demanding deeds from Lady
Mar, and a threat of exposing certain mal-practices on
her part, the indictment does not gainsay the truth of
the allegation. The like observations apply to the cases
of Douglas, 1837, and Nelson, 1839, where in neither
case was there any allegation that the charges made
were untrue. The case of Ledinghame is the first in
which I have been able to find any allegation that the
charges contained in the threatening letter were untrue ;
and I observe that in subsequent cases that the style
adopted in that case has not been observed. In the case
of Buchanan, 1842, Boss, 1844, Balfour, 1844, Muir,
1844, Balfour, 1844, Smith, 1845, there was not any
negative of the demand claimed being due, or the truth
of the accusations made.
These examples are sufficient to shew that there is no
practice so commonly observed as to create any presump-
tive case in favour of the objection.
The question therefore arises, is there any principle
which requires the public prosecutor to allege and prove
324 CASES BEFORE THE HIGH COURT
. ?,"'• ^^- the falsehood of the demand, and also of the accusations
Alex. F. '
Crawford, made ?
High Court. Jn considering this, I must take into consideration the
1850. question, whether in defence' or mitigation the Veritas of
Threaten- the accusation can be proved in behalf of the pannel. It
' would be impossible, in my opinion, to separate the two
points, and it would be very improvident tb decide the
one without looking forward to tte other point, although
that more directly will arise jn the course of the trial.
And it is much more convenient to consider the point
now.
Now, as I have before said, the criminal offence is
sending a threatening letter, with the view to extort
money.
The first objection is, I think, utterly untenable, when
the nature of the offence is considered. Take the case
of a threat of personal violence. Can the crime of using
such a threat depend on the justice of the debt ? Is it
to be contended, that if a man's debt can be shewn to
rest on probable grounds, he is innocent of "any crime
when he uses a threat of taking life, if that debt is not
immediately paid ? That is absurd. Every man has a
right to dispute the demand of his creditor in a court of
justice, and it is no answer to a charge of threatening to
burn his house, to say that the debt which the party
sought by that threat to recover was really due. Now,
there can be no difference as to the nature and essence of
the crime from the character of the threat : The crime
is the same, whether the threat is of personal violence or
of the character of those contained in the present case.
The crime charged against the pannel is, his having en-
deavoured to extort money, by means of threats, and that
crime is equally committed, whether the party using the
threat has a good or a bad debt, and whether he uses
a threat of personal violence, or such threats as here. I
think-it could not be left to the jury to say whether he
had a right to recover something from the party whom
he threatened to expose, any more than when he threat-
AND CIRCUIT COURTS OF JUSTICIARY. 325
ened personal violence ; and, in either case, if the threat ^,g^^p
is used, I think it could not be left to the jury, as any Crawford.
answer to the charge, to say whether the debt was just, ^^^j{,^°""-
or rested on probable grounds. Reference has been is^o-
made to the English law, and to the necessity of proving J'^^Ttte™
by that law that the demand was without probable or
reasonable cause ; but that law is altogether statutory,
and it is not for us to construe an English statute.
Moreover, under that law, in all the cases in which a
prosecution has taken place, the party threatenefd has
been the private prosecutor ; and I can readily conceive,
that the conduct of the private party may have been con-
sidered as inseparable from the nature of the crime ; for,
were any objection to be taken to the counsel for the
pannel endeavouring to establish, by cross-examination,
that the charges preferred in the letters were true, the
jury would at once assume that they were so, and might
perhaps act accordingly. The case assumes a totally dif-
ferent aspect here, where we have a public prosecutor,
who has to look to the public interest only, and affords
another illustration of the immense advantages our sys-
tem affords over that observed in the other end of the
island in criminal proceedings. When the statute is
passed on such matters in criminal law, it is often very
difficult to frame it so as to be adapted to the offence ;
and these statutes are often passed with too little consi-
deration. If the statements as to English law are cor-
rect, it seems to follow, that if a man's claim rests on
probable grounds, he may, with impunity, use any threats
well calculated to intimidate ; and that absurd result
seems to follow from the ill considered terms of the sta-
tute. In Scotland the offence rests on common law, and
therefore the principle of the case depends oh the real
essence of the crime.
The like observations apply to the second objection,
namely, that the indictment does not aver that the charges
were false, and known to the pannel to be false. Again,
we must here consider what is truly the offence the party
326 CASES BEFORE THE HIGH COUKT
^]ll^^^ is alleged to have committed. Plainly that "of having
Crawford, uscd threats for the purpose of obtaining money. That,
HighCourt. and that alone, is the essence of the charge. Now, sup-
1K50. posing the threat had been one of personal violence,
Threaten- at a particular time and place, would it be any answer
ing Letters. ^ * ■'
to say, that the threat was an idle boast, and that the
pannel did not intend to do any harm? Would he
be permitted to shew this, viz. that he had arranged
with his friends that they should be present, to be able
to prove that he had remained within doors, and never
proceeded to execute the violence he had threatened ?
Surely not, if the object of the threat was to extort
money. The crime would be complete by using the
threat. Here, indeed, the threat is different, but that
surely makes no difference. It is equally no answer to
the charge, that he undertakes to prove the accusation,
which he threatens to make known to others. For him-
self, he has no interest to come forward as private prose-
cutor. His only right was to give information to the
public authorities, in doing which, he was entitled to a
large protection, on principles of public policy. ^ Now,
suppose a crime to be committed by a party abroad, in
early life, when, after a period of thirty or forty years of
correct conduct, he returns home with a well earned for-
tune, and that some one happens to know of this early
delinquency, and threatens to expose him unless payment
is made of a sum of money : Is the crime of sending a
threatening letter not the same, whether the charge be
true or false ? Or is not the indictment equally relevant,
whether the falsehood of the charge which forms the
threat be alleged or not ? And if the indictment would be
relevant without alleging the falsehood, I cannot see how
the truth of the charge of Veritas would be relevant, or an
answer to the charge, or could be allowed even in mitiga-
tion. It is no part of the charge, that the accusations
in the letter were false. The charge is, that the pannel
made a threat, in order to extort money ; and that being
so, I do not see how, in logic or in law, the Veritas is
AND CIRCUIT COURTS OF JUSTICIARY. 327
relevant as an answer to the indictment, or in allevia- ^°-^^|,
tion. Crawford.
The observation of the Lord Advocate, that the ob- HighCom-t.
Feb. 11.
ject of the threat would be completely secured if the isso.
pannel were allowed to enter into any investigation of Threaten-
,,..„. ing Letters.
the truth of his charges, either in justification or extenua-
tion of his offence, seems to me most important. That
would make the criminal law not a protection to the
threatened party, but the means of injury, and would
thereby secure to the party the most unlimited and pub-
lic means of propagating his charge, without any answer.
For observe, if it is not necessary to allege the falsehood,
the public prosecutor's case would be proved by establish-
ing the threat, with the intent with which it was made.
He has no replication to the proof in defence. If the
pannel were to be allowed a proof of the kind proposed,
it would be in vain to talk of protection to the accused
party. He would have no means of controlling the
course of the trial ; and if he had, it would not be allowed
to him to bring affirmative evidence to answer the pan-
nel's defence.
I also attach much importance to the necessary incon-
venience which must arise if such a proof were to be
held competent. I do not say that inconvenience is ab-
solutely conclusive as to the course to be pursued, as in
a civil case ; but it is extremely important, either in civil
or criminal cases, not to allow collateral issues ; and un-
less we had some precedent to guide us, or some impor-
tant principle of justice to be served in the present case,
I am not disposed to allow an issue so plainly collateral to
be raised on so important a matter, thinking, as I do, that
every principle of justice is opposed to the course proposed.
In so far as a proof of the Veritas is proposed to be led,
by way of extenuation, I think it equally irrelevant,' even
assuming the charge contained in the threat to be true.
The threat held out is the issue the jury have to try, and all
that the Court would look on in determining the punish-
Y
328 CASES BEFORE THE HIGH COURT
No. 53. ment. I wish to reserve my opinion on one point whiclr
Crawford, might arisB Rs to One part of this indictment. I am not
High Court, prepared to say that a threat of making public that a party
1850. ' is living in an immoral and incorrect way, is sufficient to
Threaten- render the pai'ty making such threat amenable in a crimi-
ing e rs. ^^j court, though that be done to extort money. On this
question I give no opinion, as it may be contended, with
some plausibility, that public policy ought not to inter-
fere to prevent such exposure, if parties choose, by their
immoral life, to expose themselves to such threats ; and
I reserve myself until that point shall arise. It may
arise in the trial, and the facts may affect the relevancy
of the allegation, either as a defence or a mitigation. If
a married man, for instance, is living in adultery with a
woman, whom he visits in a house, though it may not be
known to his family, I am not at present prepared to say,
that, if a person gets that hold over him, and threatens
to expose him, if he does not buy his silence, either
such a threat ought to be subject of criminal trial, or
the truth might not be proved. I reserve my opinion
on both points.
Lord Mackenzie. — I concur in the conclusion at
which your Lordship has arrived, and in the reasons on
which you have founded your judgment. I think the
first objection, that the libel does not negative that there
was a debt due, is not well founded, and that it is equally
a crime, whether the sum demanded was a debt or other-
wise.
No man is entitled to take the law into his own hand.
If it was a relevant defence to prove that there was a
good demand against the debtor, it would then be equally
available, whatever was the nature of tbe threat used ;
consequently it would be no crime if the threat was one
that the debt would be enforced by personal violence, or
by holding a pistol to the head. It is said that that
would be robbery ; but what is robbery ? There can be
no doubt that that crime would be perfected if the money
AND CIRCUIT COURTS OF JUSTICIARY. 329
were obtained by means of threats of personal violence. f°^^y
If such defence were admitted, it would overturn every Crawford.
principle of law. ^Mb!^!"'''
As to the second objection, if it was good, it would i850.
apply equally whether the application for payment of a Threaten-
debt was good or not, and this I cannot hold. If a party
has committed an offence, his creditor's right is either to
inform the public prosecutor, or to make an application
for payment of his demand, without any threat of in-
forming other parties. To attempt to obtain payment
of a civil debt by means of supjpressing evidence of a
criminal offence seems to me unwarrantable in law.
It only remains to be considered, whether proof of the
Veritas is admissible either in exculpation or alleviation.
I do not think that it is ; and for the reasons stated by
your Lordship, on which I do not think it necessary fur-
ther to enlarge.
Lord Moncreiff. — I am of opinion that this indict-
ment is relevant. I do not consider that it is necessary
for the prosecutor to allege either, on the one hand, that
the debt demanded was not due, or, on the other, that
the accusations by means of which it was attempted to
be enforced were untrue. It seems to me that the of-
fence is complete so soon as the party attempts to en-
force either legal or illegal demands by illegal means.
As to the second objection, I think that it would be
far worse to hold that a criminal charge could not be
sustained, unless the indictment negatived the truth of
the accusations contained in the threats. As mentioned
by your Lordship, it would be giving the accusing party
the full opportunity of stating publicly in Court what he
had promised otherwise to conceal, in case his demand
were acceded to, that he be allowed to lead evidence
of the Veritas. It would be very dangerous if such were
the law. In the main, I concur in what your Lordship
has so well explained.
Lord Cockbukn. — I entirely agree, in so far as it is
necessary, to repel the objections taken to the relevancy
330 CASES BEFORE THE HIGH COURT
Aiek^F. ^^ *^® indictment. As to the other point, as to whether
Crawford, jt jg competent to the pannel to lead evidence either in
H^sh^c°P^'- justification or allevatiou, I feel some difficulty ; but ia
18S0. consequence of the opinions I have now heard, I do not
Threaten- wjsh to do more than reserve my opinion, until the
ing Letters. , , „ ■,. . ■■
question shall distmctly arise.
Lord Ivoey. — I agree with Lord Cockburn, as well
in repelling the objection to the relevancy of this indict-
ment, as also in reserving my opinion on the competency
of any special questions, by way of defence,, until the
same shall distinctly arise.
The objection to the relevancy was thereupon repelled.
Thereafter the. pannel pleaded guilty to the sending
of the first letter, as libelled.
In respect of which judicial confession, the Court ad-
judged the pannel to be imprisoned for the space of four
months.
Feb. 21.
18S0.
No. S4,
Bums t.
Present,
Lord Justice-Clerk,
Lords Moncbeiff, Coceburn, Wood, and Ivort-
Daniel Bukns, Suspender — Dear — Millar.
AGAINST
Richard John Moxey, Respondent — Neaves.
Suspension — Vagrancy. — Circumstances in which the Court sns-
pended a conviction in the Police Court, on the ground that the ori-
ginal complaint charged no cognizable offense.
^°^^y- This was a Suspension of a conviction on a charge of
"i^ib^sr'' ■'vagrancy, proceeding on a complaint which narrated that
^^^^- the suspender and others ' did all and each, or one or
Suspension, more of them, in contravention of the Edinburgh Police
AND CIRCUIT COURTS OF JUSTICIARY. 331
* Act 1848,' conduct themselves as vaffrants, by being No. 54.
° Burns «.
' found on the 14th day of February 1850 years, or about Moxey.
•* that time, in the house situated in St James' Square, High Court.
* in or near Edinburgh, occupied by Jane Marshall or mo. '
' Russel, and by Jane Brash or Shiells, or by one or other suspension.
* of them, or by some other person or persons to the
' eomplainer unknown* idle, and having no fixed places
* of residence, had no lawful means of gaining their live-
' lihood.'
On the same date the Judge found the complaint
proved against the accused, and sentenced him to forty
days imprisonment.
Pleaded for the suspender^That he was a pawnbroker
in Glasgow, and had only arrived in Edinburgh on the
day in which he was apprehended, having come on occa-
sion of business.
1 By the Ediuburgh Police Act, 11th & 12th Vict. c. 113, sect. 107,
it is enacted, ' That no order, judgment, record of conviction, or other
■* proceeditig whatsoever, concerning any prosecution instituted in the
' said Police Court, by virtue of this Act, shall be quashed or vacated
' for any misn&mer or informality; and all judgments and sentences
* pronounced by the Judge shall be final and conclusive, and not sub-
* ject to suspension, or advocation, or appeal, or any other form of re-
< view, or stay of execution, unless on the ground of corruption, malice,
* or oppression on the part of the Judge, or of such deviations in point
* of form from the statutory enactments as the Court of review shall
* think took place wilfully, or of incompetency, including defect of
' jurisdiction of the Judge, and which suspension, or advocation, or
' appeal, or review, or stay of execution, must be presented to the
' High Court of Justiciary within fourteen days after the date of the
* sentence complained of.' Sect. 157, ' That it shall be lawful' for the
* said Superintendent of Police and other officers to apprehend and
' bring before the Judge all such beggars, vagrants, and idle poor per-
' sons, men, women, or children strolling or wandering, or seeking re-
* lief, or found lying in any outhouse, stair, close, or area, or other
* place within the said limits, and it shall be lawful for the Judge to
' direct and caiise all such persons as he may not at the time convict
' of begging and vagrancy, as herein-before provided, to be handed
' over to the inspector of the poor or other official of the parish within
* which such persons shall have been found, in order that their claim,
' as paupers, may be itivestigated and dis)i<ised of according to law.'
332 CASES BEFORE THE HIGH COURT
No. 54. The 107th section of the Police Act shewed in what
Bums B. . , ,
Moxey. cascs revicw was excluded, and where it was competent.
High Court. One of these cases was want of jurisdiction. The Police
mo. ' Act had not created a statutory crime of vagrancy, out
Suspension, of specics facti which the. common law declared inno-
cent. This petition would not do if it had not come up
to the common law offence desipied in the statute. AH
that was alleged in the complaint was, that he conducted
himself as a vagrant, by being found in the house men^
tioned. Nothing was said as to the character of the
house. Section 157 of the act threw light on what was
meant by the term vagrant, and none of the circum-
stances mentioned in that section were averred against
the suspender in the complaint.
Pleaded for the respondent — ^The objection was merely
want of specification in the libel. As to the jurisdiction
there was no doubt, nor was there any doubt as to the
competency of the complaint. The fapt that the suspen-
der was found in a house so well known as Jane Brash's,
was quite sufficient to justify the police in apprehending
and the Judge in convicting him.
Lord Ivory. — Jane Brash's house is not a nomen juris
for vagrancy.
Neaves. — Perhaps the libel might have been more
specific, but the house was so well known, that his being
found in it was quite sufficient to constitute the crime of
vagrancy.
Lord Ivory. — ^The vagrancy here averred is being
found in a house idle.
The Lord Justice-Clerk. — It looks as if Jane Brash's
house was taken to include every thing in the 157th sec-
tion of the act.
Neaves — It was denied that he was a. broker, or that
he was there for any lawful purpose, and so the Judge
had found.
Lord Moncreiff. — I think there is a mistake in this
complaint. It libels nothing here but being found in
a house. Now, a gentlemen may be found in a house
AND CIRCUIT COURTS OP JUSTICIARY. 333
very idle indeed, but he is not therefore a vagrant. If No. oi.
the fact be as stated, that this house was of such a noto- Moxey.
rious description, why was it not averred ? High Court,
Lord Cockbuen. — I demur to the competency of this isso. '
appeal. It was competent for the Police Court to examine Suspension.
into a case of vagrancy. The answer made is, that this
indictment is not relevant. But are we to review the
objections to the relevancy of this charge in the Police
Court ? I do not think the defect in the libel is any good
reason for appealing the case to us. Besides, I do not
think the objection itself is well founded. It was com-
petent under this libel to prove the state of this house.
: LoED Wood. — I see no difficulty as to this Court
having a competency of review in this case. The police
have only jurisdiction in certain cases. Then, if this be
one where they have it not, it must be competent to bring
it up here. If the charge, taking it as a whole, is not a
police offence, then there is no jurisdiction given to the
Police Court by the act.
As to the second point, I concur with Lord Mon-
creiff. I say nothing as to what would be the effect
if the libel had stood merely on the words, conducting
himself as a vagrant ; but the specification here given is
being found idle in a house. Why, every man may
be, and is so, every day in his life. We have nothing
here as to the character of the house.
LoED IvoEY. — I concur entirely with Lord Wood.
The Lord Justce-Clerk. — I concur in the view that
the question of competency here does involve the merits ;
for if there is no statutory charge the conviction cannot
stand, and I abstain from giving any opinion as to the ge-
neral charge being sufficient or not. There is here given
a specification of what the vagrancy is ; but I do not think
there is any sufficient description of vagrancy, for his being
found idle merely is stated. Therefore it would be enough,
under this complaint, that when the police officers enter
a man's house he is found idle. Now, that would be vei-y
alarming, and cannot be tolerated, and it would have been
334 CASES BEFORE THE HIGH COURT
No. Bi. very easy to have altered it ; for you can combine the
Moxey. 157th Section, and make out the character of the house.
High Court. This suggests to me the great expediency of having the
1 850. " same review given over all police cases. In Glasgovr every
Suspension, man may bring any thing under review. Here they can-
not. Now, why should we not have the same review
over those cases in the Edinburgji Police Courts that we
have in those occurring in the Sheriff and Justice of Peace
Courts ? and, indeed, there are fewer appeals from those
places, such as Glasgow, where the Court has the un-
limited right of review, than from those like Edinburgh,
where there is an attempt to exclude it. And the rea-
son is plain. It is just because there is greater care taken
in the former case than in the latter.
The Court passed the Note with expenses.
March 1 1 .
1850.
Present,
The Lord Justice-Clehk,
Lords Mackenzie and Wood.
Her Majesty's Advocate — Sol. Gen. Moncreiff—Deas A.D. —
J. M. Bell A.D.
AGAINST
William Duncan — Anderson — Giffsrd.
Alexander Gumming — Logan.
Indictment — Relevancy — Forgery — Jurisdiction. — Held, 1st,
That it was a relevant charge against two pannels to aver that they
' both and each, or one or other,' acting in pnrsuance of an unlaw-
ful concert, and for a fraudulent purpose, adhibited the signature of
one of them to the document ; 2d, That, under the circumstances,
the words at and near Edinburgh, and elsewhere, was not too vague
a specification of the locus delicti ; and, 3d, That, in respect of .the
above words importing the commission of an offence in Scotland,
the Jury could not convict one of the pannels, who had never left
England, as art and part of an offence committed in Scotland.
AND CIRCUIT COURTS OF JUSTICIARY. 335
William Duncan, practising as a surgeon at Amble, No. bb.
in the county of Northumberland, and Alexander Dunoln"&
Gumming, practising as a surgeon and druggist, in cum^ng'
Broughton Street, Edinburgh, were charged with For- HighCom-t.
gery; As also, Using and Uttering, as genuine, a False ^^l^^'o.^''
and Forged Writing, . knowing the same to be false and "r^erf,"
forged ; As also, with Falsehood, Fraud, and Wilful Im- *=•
position ; As also. Conspiring to Commit the above
crimes, or one or more of of them :
In so far as, it being required by the Eegulations of the Royal
College of Surgeons of Edinburgh, in force in or about the year 1 844,
that every candidate for a diploma from that college should, before ob-
taining such diploma, have followed a certain prescribed course of
study, and should have laid before or furnished to the President of the
said College a tabular statement or schedule subscribed by the said
candidate, exhibiting the full extent of his professional education, and
a separate list of all classes, hospitals, and dispensaries which he had
attended during each session of his studies respectively, and should
thereupon obtain from the said president a letter or authority directing
or authorising the examinators of the said college to take him the said
candidate^ upon trial, and should thereafter appear before the examina-
tors of the said college and undergo an examination, and should only
be entitled^to receive a diploma from the said college on being found
by the said examinators to be duly qualified to practise surgery and
pharmacy ; and yon the said William Duncan and Alexander Cum-
ming having formed and concocted a false and fraudulent scheme,
machination, and design, to procure a diploma from the said Royal
College of Surgeons in name of you the said William Duncan, so as to
enable you the said William Duncan to hold yourself out to the public
as having been found duly qualified by the said Royal College to
practise surgery and pharmacy, without you the said William Duncan
actually appearing before the said examinators, or undergoing any ext
amination, or being found qualified as aforesaid, you the said William
Duncan and Alexander Cumming did, both and each, or one or other
of you, some time or times in or about the months of October, Novem-
ber, and December 1844, or in or about one or more of these months,
the particular time or times being to the prosecutor unknown, at or
near Amble aforesaid, and at or near Edinburgh, or at or near one or
other of these places, or at some time or times, and at some place or
places, to the prosecutor unknown, wickedly and feloniously, conspire,
confederate, and agree, that you the said Alexander Cumming should,
falsely and fraudulently, personate and assume the character of you
the said William Duncan, and should, in that character, apply for and
336 CAaES BEFORE THE HIGH COURT
No. 55. obtain a diploma from the said Royal College of Surgeons, in name of
D!l'ncan& y°" ^^^ ^^'"^ William Duncan, importing that you the said William
Alexander Duncan had been found duly qualified to practice surgery and pbar-
Cumming. jj^^^y^ ^nd should, falsely and fraudulently, represent and pretend to
High Court, the office-bearers and examinators and others, acting for or on behalf
1850. of *li6 said College, or to some of them, that the name of you the said
~Z 77~ Alexander Camming was William Duncan, and that you the said
&c. Alexander Cumming should, under the name of William Duncan,
undergo the aforesaid examination, prescribed by the foresaid regula-
tions, and that upon you the said Alexander Cumming obtaining a
diploma as aforesaid from the said Royal College of Surgeons, under
the name of William Duncan, the same should be delivered to you the
said William Duncan, and that you the said William Duncan should
thereafter use and act upon the same, as in all respects a diploma pro-
perly and lawfully obtained by you the said William Duncan : And
you the said Alexander Gumming did accordingly, in furtherance and
pursuance of the object and purpose of the said conspiracy, and acting
in concert with the said William Duncan, and in order to carry into
effect and accomplish the object and purpose of the said conspiracy,
some time betwixt the 1st day of October and the 5th day of Decem-
ber 1844, the particular time being to the prosecutor unknown, pro-
ceed from Amble aforesaid to Edinburgh, and clid, in or near Surgeons'
Hall, in or near Edinburgh, or at some other place in or near Edin-
burgh to the prosecutor unknown, procure or obtain from the conser-
vator for the time being of the said Royal College, or from some other
person or persons acting for the said Royal College, to the prosecutor
unknown, a printed form of a tabular statement or schedule, required
to be presented by candidates to the President of the said Royal Col-
lege as aforesaid, for the purpose of the same being filled up and pro-
perly attested, with a view to the same being presented to the said
president, in terms of the foresaid regulations : And you the said Wil-
liam Duncan and Alexander Cumming did, both and each, or one or
other of you, acting in concert as aforesaid, time and place last above
libelled, or at some other time and place in or near Edinburgh, to the
prosecutor unknown, wickedly and feloniously, falsely and fraudu-
lently, forge and adhibit, or cause or procure to be forged and ad-
hibited to a certificate prefixed to the tabular statement or schedule so
procured as aforesaid, in the following or some similar terms : ' I here-
' by certify that the subjoined summary contains a full and accurate
' account of the education which I have received, commencing session
' 1 833, as I have more particularly specified in the annexed schedules,
' pages 2 and 3,' the words or subscription, ' William Duncan,' intend-
ing the same to pass for, and to be received as, the genuine subscrip-
tion of you the said William Duncan, or of some wholly fictitious per-
son : Farther, time and placq last above libelled, or at some other
time and place in or near Edinburgh to the prosecutor unknown, you
AND CIRCUIT COURTS OF JUSTICIARY. 337
the said William Duncan and Alexander Gumming did, both and each, No. 55.
or one or other of you, acting in concert as aforesaid, wickedly and ^ °V
feloniously, falsely and fraudulently, use and utter, as genuine, the Alexander
said false and forged tabular statement or schedule and certificate, or Cumming.
one or other of them, having the said false and forged subscription High Court,
thereat, you, both and each, or one or other of you, knowing the same ^850
to be false and forged, by then and there delivering the same, or caus-
ing the same to be delivered, as a genuine document, to Dr James &c.
Simson, the then President of the said Eoyal College of Surgeons, or
to some other office-bearer of the said college to the prosecutor un-
known ; and you did, both and each, or one or other of you, acting in
concert as aforesaid, then and there, wickedly, wilfully, and feloniously,
falsely and fraudulently, represent and pretend to the said president or
other office-bearer of the said college, that you the said Alexander
Gumming was the William Duncan therein referred to, and that the
said signature ' William Duncan' at the said certificate, was the ge-
nuine subscription of you the said William Duncan ; and you the said
William Duncan and Alexander Gumming did, farther, both and each,
or one or^other of you, acting in concert as aforesaid, then and there
deliver to the said president or other office-bearer of the said college,
the tickets and certificates granted to you the said William Duncan,
and referred to and founded on in the said tabular statement or
schedule, as if the same applied to you the said Alexander Gumming,
and on the footing that the name of you the said Alexander Gumming
was William -Duncan, and this you did, to verify or confirm the state-
ments or entries contained in the said tabular statement or schedule ;
by all which, or part thereof, the said president and other office-
bearers of the said Eoyal Gollege of Surgeons, or one or more of them,
were cozened, cheated, deceived, and imposed upon, by you the said
William Duncan and Alexander Gumming, or by one or other of you,
acting in concert as aforesaid ; and the said president having directed
or authorised an examination of you the said Alexander Gumming, in
the belief that you were the William Duncan referred to in the said
tabular statement or schedule, and in the said certificate to be taken
by the examinators of the said Royal Gollege, you the said Alexander
Gumming, acting in concert as aforesaid, did attend for examination
within or near Surgeons' Hall aforesaid, on or about the 4th day of
December 1844, before and in presence of Doctor John M'Farlane,
now or lately residing in or near Charlotte Square, in or near Edin-
burgh, Doctor Richard Huie, now or lately residing in or near George
Square, in or near Edinburgh, Doctor Francis Farquharson, then re-
siding in Edinburgh, and now or lately residing at or near Finzean, in
Aberdeenshire, Doctor Robert Omond, now or lately residing in or
near Charlotte Square aforesaid, and others, or one or more of them,
examinators appointed by the said Royal Gollege of Surgeons ; and
you the said Alexander Gumming, acting in concert as aforesaid, did.
338 CASES BEFORE THE HIGH COUET
No. 55. then and there, falsely, fraudulently, and wilfully, represent yourself
DTnran'& *° ^^^ ^^^^ examinators, or to some of them, to be the said "William
Alexander Duncan, or falsely, fraudulently, and wilfully, lead or induce them to-
Gumming. bgUgye you were Wiyiam Duncan, and the person mentioned and re-
High Court, ferred to in the foresaid certificate and tabular statement or sch'edule
1850. above libelled : And the said examinators did, consequently, time and
— place last above libelled, examine you the said Alexander Cumming,
°&c. ' in terms of the said regulations, in the belief that you were the Wil-
liam Duncan referred to in the foresaid certificate and tabular state-
ment or schedule, and found you to be duly qualified to practise sur-
gery and pharmacy ; and did deliver or cause or authorize to be de-
livered to you the said Alexander Cumming, a diploma in the usual
form subscribed by the said examinators and their preses, or by some
of them, bearing or importing that you the said William Duncan, or at
least a person of the name of William Duncan, had been examined and
found duly qualified to practise surgery and pharmacy ; and you the
said Alexander Cumming did immediately, or soon thereafter, deliver the
said diploma to you the said William Duncan for the purpose of being
acted on and used by you the said William Duncan as a diploma in
your favour ; and you the said William Duncan did accept and receive
from the said Alexander Cumming the said diploma, in the full know-
ledge of the manner in which the same had been obtained by the said
Alexander Cumming as aforesaid, and did, in or near Edinburgh and
elsewhere, act upon, exhibit, and use the same as a diploma, properly
and lawfully obtained by and in favour of you the said William Dun-
can ; by all which, or part thereof, the said examinators and other
oflice-bearers of the said Royal College of Surgeons, or one or more of
them, were cozened, cheated, deceived, and imposed upon, by you the
said William Duncan and Alexander Cumming, or by one or other of
you ; and all this, or part thereof, you the said William Duncan and
Alexander Cumming did, wickedly and feloniously, in furtherance and
pursuance of the foresaid conspiracy ; and the object, purpose, and de-
sign, of the said conspiracy were thereby accomplished and carried into
efiect, or partially accomplished and carried into effect, by you the
said William Z^'Rcan and Alexander Cumming.
GiFFORD objected to the relevancy of the indictment, in
so far as it charged forgery. The conspiracy set forth was,
that the prisoner Duncan should, by means of false repre-
sentations, obtain a diploma, and the mode in which the
conspiracy was carried out, was alleged to be that one or
other of the pannels acting in concert, adhibited the word
or subscription ' William Duncan' to the document li-
belled ; it was thus left uncertain whether the subscription
AND CIRCUIT COURTS OP JUSTICIARY. 339
of Duncan was his genuine signature ; and farther, even ^?,-,.^^-
holding that the document had been signed by Cum- Duncan &
ming in Duncan's name, yet, as the indictment alleged cumming.
them to be acting in concert, it must be presumed that High Court.
he had Duncan's authority for so doing. All that was ^^Ysso.^^'
alleged therefore, amounted to falsehood, fraud, and "ForgeryT
wilful imposition libelled, and not to forgery. The *"•
indictment, moreover, was too vague both in time
and place, all that was alleged was that the prisoner
Cumming ' did, in or near Edinburgh, and else-
• where, act upon, exhibit, and use the same as a di-
' ploma,' &c. This left it uncertain whether or not
the prosecutor intended to found on the prisoner
Duncan having used the diploma in England. If so, there
ought to be a more specific statement, and if not, he
objected to the jurisdiction of the Court, inasmuch as
he had never been in Scotland.
Deas — ^The argument was, that no one could forge his
own signature ; that doctrine had been overruled in diffe-
rent cases where the object for which the signature was at-
tached, was to deceive the person to whom the docutnent
was uttered, as to whom it was intended to denote. Here
the object was alleged to be fraudulent, and that the
fraud was carried into effect, and that deception was ac-
tually practised thereby, and the Crown undertook to
prove this, and that all that took place was done in con-
cert, which made it equally forgery whether Duncan
signed the document or Cumming.
Anderson. — The question was not whether the crime
of forgery had been committed, but whether that crime
was sufficiently charged in the indictment ; it might be
r6ad as charging Duncan individually with using his
own subscription.
Lord Wood. — If Cumming forged the document, then
his crime is complete ; and surely Duncan might be art
and part in so doing.
Anderson. — If the indictment had been so laid, the
objection would not have arisen ; but it is presently
340 CASES BEFORE THE HIGH COURT
No. 55. charging both and each with adding and adhibiting the
Duncan & Subscription, and it was quite consistent therewith that
Alexander ii • j. •„
Gumming, the Signature was genuine.
High Court. The words ' elsewhere' were also too vague, looking
^um!^' *o tbe designation of the prisoner Duncan as set forth
Forgery, iQ the indictment, and the nature of the charge.
*"■ The Lord JusTicE-CLiiRK. — They do not charge prac-
tising in England as a crime, here it can only be used as
evidence to the conspiracy for obtaining a diploma ; the
finding of stolen goods in the hands of a man in Cal-
cutta, may be good evidence against him in respect of a
theft said to be committed in Edinburgh.
Lord Mackenzie. — I cannot hold this document not
to be forgery ; it is said that if Duncan did not sign him-
self, that yet as the prisoners are alleged to have acted in
concert, it must be presumed that Gumming had his
authority to sign his name, but that will not in all cases
be enough to protect the parties from the crime of for-
gery. Take the case of one man authorising the other
to sign his name to drafts for money, under an agree-
ment that as soon as he shall have got the same he shall
abscond, and that thereafter the party whose name has
been used should plead forgery as a protection against
honouring the drafts, would not this be forgery by both
parties ? I cannot doubt that it would. So in this case
the charge of fabrication and conspiracy runs through-
out the whole, and whatever difficulty there might be in
reducing to rule the definitions which have been usually
given for forgery, that only shews that the ingenuity of bad
men is greater than that of lawyers. I would, however,
have had more difficulty if it had been expressly alleged
that the signature was that of Duncan.
Lord Wood. — If it had been necessary to give an
opinion, as to whether there could be forgery in Duncan
himself signing the document, I should have had some
hesitation, but the point has not arrived.
The Lord Justice-Clerk. — No doubt we have only
to consider Mr Anderson's objection, and I have no
AND CIRCUIT COURTS OF JUSTICIARY. 341
doubt that on the indictment as framed he will be dis- N"- ^^■
• William
charged of that charge. That Gumming was to go to Duncan &
Edinburgh and present the document as the genuine sub- cumming"]
scription of himself, and thereby obtain a diploma in the High court.
name of William Duncan, is clearly charged, but whether 'I'aso.
it would make any difference that Duncan himself signed Forgery,
the document so intended to be used, and actually used for *"''
such a purpose, I doubt, but I reserve my opinion thereon.
It appeared in evidence that the prisoner Gumming
on the 4th of December 1844, passed in the name of
Duncan an examination required by the GoUege of Sur-
geons, and thereafter received a diploma also in his
name, under which the prisoner Duncan practised in
England. There was no evidence that Duncan had ever
been in Scotland, either at the time of getting the di-
ploma, or afterwards, until brought for trial.
Anderson thereupon objected, that as the prosecutor
had not proved that Duncan had done anything in Scot-
land, there was no case for the Jury. The case laid
was that of conspiracy, — had anything been proved with
reference to that in Scotland ? The conspiracy, if made,
was in England. The forgery again, if perpetrated was
here. Duncan was not here on any one occasion. Sup-
pose two or three men conspired in England to commit
a theft in Scotland. One remained in England ; two
came to Scotland, and were caught in the act. Could
it be said that this Gourt had jurisdiction to try the
third, though he was never was out of London ? If it
could be shewn that this was a crime in continuum, part
perpetrated in England, part in Scotland, the case
might be different, but they had not shown anything of
the sort.
Solicitoe-Geneeal. — It was not an objection to the
trial, in so far that the facts proved against Duncan were
committed in England wholly, they having been com-
mitted by him with reference to a crime perpetrated in
Scotland, in which we say he was art and part. The
objection went to this, that the Gourt could not try the
342 CASES BEFORE THE HIGH COCRT
w°i)fam question whether he was art and part ; it might be that
Si^xlnto ^* ^^^ ^'^^ established in fact that he was guilty, but
Camming, had uot the Court jurisdiction to declare him innocent.
High Court. The whole of that would come to this, that whenever a
I860. " crime was committed in Scotland in concert with a
Forgery, party residing in England, that you could not try the
party here because of his residence there ; and you could
not try him there, because the crime was committed
here. Suppose that rebellion had started in England,
of which the first outbreak was. to be in Scotland, could
I not try all the parties concerned in the plot even al-
though some of them had not left England ?
The Lord Justice-Clerk. — The case that you put is
peculiar, because that amounts to high treason •, but in
a case of sedition like that of Horn Tooke, could you try
it here ?
The Solicitor-General. — The Court would have
jurisdiction to try it. Take the case of the Cotton-
spinners ; — receipts were found on them from parties in
England for money, which had been given to induce the
commission of th.e offence. There was no authority to
shew that they could not have been tried here, (Hume,
vol. ii. p. 63). It did not signify how the crime or main
act was committed, the whole question was, whether the
Court was competent to try the crime ? If it was a com-
petent jurisdiction to try the crime, it necessarily fol-
lowed that the Court had jurisdiction to try the crime
of art and part. Suppose the Jury found it a fact, that
Duncan was art and part in an offence committed here,
had not the Court jurisdiction to punish ?
The Lord Justice-Clerk. — You put the trial on this
indictment, that the diploma was exhibited here, or else-
where.
The Solicitor-General. — The Crown was entitled
to prove that, in order to shew imposition on the
College here,— could he have been tried in England
for fraud on the College here ? surely not ; for if it
was a crime at all, it was committed here. The result
AND CIRCUIT COURTS OF JUSTICIARY. 343
of holding that a party in England who was art and part ^?^j'^^
in such an imposition would be, that if he could not be Duncan &
tried here, he could not be tried anywhere. Gumming.
Anderson. — The case was not one depending merely High Court.
on proof of art and part, but depended on a separate igjo.
charge of conspiracy, which was libelled as a separate Forgery,
act. Suppose the words, ' at or near Edinburgh, or ""
* other place "or places to the prosecutor unknown,' were
struck out of the indictment, and it had stood, ' at or
* near Amble aforesaid, conspired, confederated,' &c.,
could there be a doubt that that was an English crime, —
that was the present case as it came out in proof, for all
that took place subsequently, which was charged against
Duncan, referred back to the conspiracy, and was not
libelled independently as art and part of the actual im-
position ; consequently, the crime alleged was one cog-
nizable in the English courts, and if so, there was no
jurisdiction here.
The Lord Justice-Clerk. — ^This discussion has raised
a question as large and important in principle as can be
conceived, and it would be premature were we obliged
now to decide so general a point. But we do not think
this indictment framed so as to cover the case against
Duncan, and the occurrence of the case which has occa-
sioned the discussion, is matter of surprise, because it is
stated ' you Duncan did, in or near Edinburgh, act on.'
The whole of this indictment proceeds first, with an al-
legation of conspiracy. I do not mean that this is the
indictment, or the whole of it. But there is an aver-
ment of conspiracy at or near Amble, It would have
been easy to have framed an indictment, setting forth
that Duncan furnished Gumming with the necessary
documents, and Gumming, in possession of these for his
behoof, and in concert, did so and so, and having received
the diploma, com^mitted the fraud you arranged he
should perpetrate. "We abstain from saying whether
that would have been relevant. But the indictment,
after stating that your acting in concert did proceed
z
344 CASES BEFORE THE HIGH COURT
No. 55. from Amble to Edinburgh, goes on to say, — you two, time
Duncan & and pkcc kst above libelled, did forge and adhibit, and
Gumming' then you did use and utter as genuine. So that the forgery
High Court, and uttering is stated as in Scotland, and you did proceed
^7s&o!^' to represent to the President of the College that Gumming
Forgery, was Duucan ; then you or one or other did present cer-
*"■ tiiicates, so that what is done is said to be done by both
or one or other in Scotland, and not by me as the agent
of the other. And then, at the close, it is declared,
' which was delivered to you the said William Duncan,
' and you did use,' &c., from all which it would have
been impossible to suppose that William Duncan re-
mained in England, and never came to Scotland. The
prosecutor ought always to frame his indictment con-
sistently with the case he means to prove ; and if a dif-
ferent case was to be tried, the indictment should have
raised it.
Lord Mackenzie. — I concur on the special ground
on which this judgment is viewed by your Lordship,
When the objection was first stated by Mr Anderson, I
thought it unimportant, or doubtful. I took the view that
the crime was committed in Scotland, on employment
by a person in England. Suppose a man in England
hires an assassin in Scotland to shoot another, but never
comes here himself, and the man shoots the person,
would that not afford jurisdiction ? The view your
Lordship takes^ makes it clear. The indictment states
that both parties were in Scotland ; the prosecutor is
bound to prove this, — ^he has not done it. I agree in
this view, and reserve the general question.
LoED Wood concurred.
The Jury found the pannel Gumming guilty as libelled,
and Duncan not guilty.
In respect of which verdict of assize, the said Alex-
ander Gumming was sentenced to imprisonment for the
space of twelve months, and the said William Duncan
was assoilzied simpliciter. '■
AND CIRCUIT COURTS OF JUSTICIA RY. 345
NORTH CIRCUIT.
INVERNESS.
Spring 1850. April 19.
Jud^fe — The Lord Justice-Clekk.
William Welsh, Appellant — Millar.
AGAINST
J. Macphbrson, Respondent — J. M. Bell.
Police Jurisdiction. — Held that a Police Magistrate has no jurisdic-
tion to try an alleged offence, except iipon a regular complaint.
This was an appeal against a sentence pronounced in No. se.
the Police Court of Inverness under the following cir- Macpher-
cumstances : — ^°°'
The appellant had sold to a flesher in Inverness a ApriTig!*
young Ayrshire bull, which had died at his farm. The ^^^^'
flesher afterwards cut up the carcase, and portions of it ^^^^ *
were exposed to sa.le at his stall. On the allegation that
the meat was diseased, and unfit for human food, the
Procurator-fiscal presented a complaint against the
flesher in the Police Court, and, upon that complaint,
the flesher was cited to appear and answer to the charge.
A warrant was granted on the complaint in common
form to cite witnesses ; and in virtue thereof the appellant
was cited to appear as a witness at the trial of the case.
The appellant accordingly appeared under this cita-
tion ; but, instead of being dealt with as a witness, he
was arraigned at the bar as an ofifender along with the
flesher.
The appellant objected to this course of procedure,
upon which an offer of delay was made, but refused.
After evidence had been led, both the appellant and
the flesher were found guilty of exposing unwholesome
meat for sale, and the appellant was fined three guineas.
346 CASES BEFORE THE HIGH COURT
No-S6. Against this judgment the present appeal was taken.
Macpher- MiLLAR, for the appellant, submitted, that the sentence
was null, and that upon two grounds. In the first place.
Apriug!' the Magistrate, in the circumstances, had no jurisdiction
- ^^^"" to entertain a complaint against the iappellant. A citation.
Appeal, ^j. ^ fQj.^^1 complaint, was requisite to give jurisdiction ;
but here there had been no such citation. The appellant
appeared in Court as a witness ; and the Magistrate had
no more power to deal in the way he did with the appel-
lant than with a person who happened to be a spectator in
Court. It would arm magistrates with a very dangerous
power if such procedure as that adopted against the ap-
pellant were to be sanctioned; the provisions of the
Police Act were plainly inconsistent, but there was no
occasion to argue that as a general question, because the
provisions of the Inverness Police Act were plainly in-
consistent with the right which the Magistrate had ex-
ercised. In the second place, the sentence complained
of was invalid, because, even if the Magistrate could in
any circumstances entertain a charge where the alleged
offender had not been cited upon a regular complaint, he
was here barred from dealing with the appellant as such,
because the appellant had been cited by the Prosecutor,
and actually appeared in Court as a witness. The
authorities on this point were explicit, case of Ritchie v.
Pilmer, High Court, Shaw, p. 142.
The Court had no difficulty in holding, that it was
necessary to give validity to Police sentenceain ordinary
cases, that the party should have been brought before a
Magistrate on a regular citation, proceeding on a proper
complaint, and on that ground sustained the appeal with
expenses.
AND CIRCUU' COURTS OF JUSTICIARY. 347
PERTH.
Judffe—LoRD "Wood. j^^p^i 24.
liiSO.
Peter Launders, Appellant — P. Fraser.
AGAINST
George Mann & Co. Respondents — Millar.
Appeal — Competency — Final Interlocutor. — Held that an appeal
might be presented within ten days from the interlocutor approving
of the taxation of expenses.
This was an appeal from a judgment of the Magis- No. S7.
trates of Dundee, of date 31st October 1849, pronounced M^maco,'
in the following terms : — ' Having advised the report Perth.
* upon the pursuer's account of expenses, approves of the usn, '
* report, and in terms thereof taxes these expenses at Appeal.
* £7 : 12 : 2, and for this sum decerns at the pursuer's
* instance against the defender.'
The interlocutor disposing of the merits, and remitting
to the Clerk of Court to tax the same, was pronounced
on the 17th of October 1849.
The appeal was taken within ten days of the inter-
locutor of 31st October 1849, approving of the report of
expenses.
Millar, for the respondent, objected to the com-
petency of the appeal, in respect that it had not been
taken within ten days from the date of the interlocutor
disposing of the merits, and remitting to the clerk. It
had been held in the case of the Dundee Union Whale
Fishing Company, Perth, Oct. 13. 1848, ante, p. 15, that
an appeal was competent after a final interlocutor on the
merits finding expenses due, but before the same had
been taxed. The Act of Sederunt regulating appeals
to Circuit Courts only contemplated one time, within
ten days of which the appeal must be taken, and it
followed from the decision referred to, that as it might
have been taken within ten days after the interlocutor
348 CASES BEFORE THE HIGH COURT
No.s?. of 17th October, so under the Act of Sederunt it must
Launders 1!.
Mann&Co. be dismissed.
Perth. Lord Wood. — It certainly was not the intention of
April 24. , ^ . , J J • • u- 1,
1850. the Court m that case to pronounce any decision which
Appeal, would havc the effect contended for.
After consulting with the Lord Justice-Clerk, his
Lordship held that the objection stated could not be
sustained, and allowed the case to proceed upon its
merits.
Judges. — Lord Justice-Clerk and Lord Wood.
April 25. "
1850.
Her Majesty's Advocate—/. M. Bell A .D.
AGAINST
David Bell. — W. O. Dickson.
Statute — Jurisdiction. — Held, that where contravention of the lat
and 2d sections of 9th Geo. IV. c. 69, were not libelled cumula-
tively, that the Court of Justiciary had no jurisdiction in the absence
of two previous convictions.
^ ^?: ^s, David Bell was charged with Contravention of the
David Bell. °
^^^^ Statute 9th Geo. IV. cap. 69.'
April 25.
.'850.
Night ' By § 1 it is enacted, that ' if any person shall, after the passing of
Poaching. 4 tiiis ^Qtj by night, unlawfully take or destroy any game or rabbits
' in any land, whether open or enclosed, or shall by night, unlawfully
' enter or be in any land, whether open or enclosed, with any gun,
' net, engine, or other instrument, for the purpose of taking or destroy-
' ing game, such offenders shall, upon conviction thereof before two
' Justices of the Peace, be committed, for the first offence, to the
' common gaol or house of correction for any period not exceeding
' three calendar months, there to be kept to hard labour, and at the
' expiration of such period shall find sureties by recognisance, or in
' Scotland by bond of caution, himself in ten pounds, and two sureties
' in five pounds each, or one surety in ten pounds, for his not so
' offending again for the space of one year next following, and in case
' of not finding such sureties, shall be farther imprisoned and kept to
' hard labour for the space of six calendar months, unless such sureties
' are sooner found ; and in case such person shall so offend a secon
AND CIRCUIT COURTS OF JUSTICIARY. 349
In so fak as, you the said David Bell did, by night, that is to say, No. S8.
between the expiration of the first hour after sunset and the beginning ' ^ '
of the last hour before sunrise, on the night of the 30th of November, .^'^.^'Ij"
or morning of the Jst of December 1849, or on some other night or ig5o_
morning of the said months of November, or December, or of October j^.
immediately preceding, unlawfully enter or were in the park at Largo Poaching.
' time, and shall be thereof convicted before two Justices of the Peace,
' he shall be committed to the common gaol or house of correction for
' any period not exceeding six calendar months, there to be kept to
' hard labour, and at the expiration of such period shall find sureties
' by recognisance or bond as aforesaid, himself in. twenty pounds, and
' two sureties in ten pounds each, or one surety in twenty pounds, for
' his not so offending again for the space of two j'ears next following,
' and in case of not finding such sureties, shall be farther imprisoned
' and kept to hard labour for the space of one year, unless such sureties
* are sooner found ; and in case such person shall so offend a third
' time, he shall be guilty of a misdemeanour, and being convicted
' thereof, shall be liable, at the discretion of the Court, to be trans-
' ported beyond seas for seven years, or to be imprisoned and kept to
' hard labour in the common gaol or house of correction for any term
' not exceeding two years ; and in Scotland, if any person shall so
' offend a first, second, or third time, he shall be liable to be punished
' in like manner as is hereby provided in each case.' By § 2, it is
enacted, ' That where any person shall be found upon any land com-
' mitting any such offence as is herein-before mentioned, it shall be
' lawful for the owner or occupier of such land, or for any person
' having a right or reputed right of free warren or free chase thereon,
' or for the Lord of the manor, or reputed manor, wherein such land
' may be situate, and also for any gamekeeper or servant of any of the
' persons herein mentioned, or any person assisting such gamekeeper
' or servant to seize and apprehend -such offender upon such land, or
' in case of pursuit being made in any other place to which he may
' have escaped therefrom, and to deliver him as soon as may be into
' the custody of a peace-ofiicer, in order to his being conveyed before
* two Justices of the Peace ; and in case such offender shall assault or
' offer any violence with any gun, cross-bow, fire-arms, bludgeon,
' stick, club, or any other offensive weapon whatsoever, towards any
' person hereby authorised to seize and apprehend him, he shall,
' whether it be his first, second, or any other offence, be guilty of a
' misdemeanour, and being convicted thereof, shall be liable, at the
' discretion of the Court, to be transported beyond seas for seven years,
' or to be imprisoned and kept to hard labour in the common gaol or
' house of correction for any term not exceeding two years ; and in
' Scotland whenever any person shall so offend, he shall be liable to
' to be punished in like manner.'
350 CASES BEFORE THE HIGH COURT
No. 58. House, belonging to or occupied by Mrs Lilias Dundas Oalderwood
David Bell. Durham, of Largo, situated in the parish of Largo, and shire of Fife,
Perth, and at or near a part of said park which ia near to the highway from
^nlo^' Largo, in the parish of Largo aforesaid, to Cupar -Fife, you being
armed with a gun or other fire-arm for the purpose of taking or de-
Poaching, stroying game : And you the said David Bell have been previously
convicted of the statntory offence of contravention of the first section
of the said statute 9th Geo. IV., cap. 69 : Likeas (2.), time and place
above libelled, you the said David Bell did, wickedly and feloniously,
attack and assault John M'Creath, then and now or lately gamekeeper
to the said Mrs Lilias Dundas Calderwood Durham, a person lawfully
authorised, then and there, to seize and apprehend you the said David
Bell, and you did, wickedly and feloniously, strike the said John
M'Creath one or more severe blows on the head or other parts of his
person with your fists, and did, with your gun or other fire-arm afore-
said, or with some other instrument to the prosecutor unknown, strike
the said John M'Creath one or more severe blows on the bead or other
parts of his person, and did fell him to the ground, and did kick him
severely with your feet., and did otherwise maltreat and abuse him ; by
all which, or part thereof, the said John M'Creath was bruised or
wounded to the effusion of his blood, and the injury of his person :
And you the said David Bell have been previously convicted of
assault : And you the said David Bell, being conscious of your guilt in
the premises, did abscond and flee from justice.
Dickson objected to the jurisdiction of the Court to
try the case, so far as the libel charged a contravention
of the first section of the act. The tribunal which was
to try the different offences under the act was regulated
by the eleventh section of the act, under which no trial
was competent before the Justiciary Court, unless for a
third offence, or where sentence of transportation might
be pronounced. Here the libel only alleged one previous
conviction, and transportation might not be imposed for
a second offence. The point had already been decided
in Bowet, Ayr, April 27. 1843, Broun, vol. i. p. 540;
which decision was followed in Robertson, Dumfries,
April 27. 1844, Broun, vol. ii., p. 176 ; and M'Nab, High
Court, March 14. 1845, Broun, vol. ii., p. 416. This
case differed from the last, as the charges were not con-
nected in the way they were in that case.
The Court sustained the objection, whereupon the
AND CIRCUIT COURTS OF JUSTICIARY. 351
Advocate-Depute ' passed from the contravention of the No. &b.^^
* first section of the statute as a substantive charge.' ^^^^^^^
Evidence having been adduced by the Crown, the ■^^p^'.'q^®-
pannel's counsel addressed the Jury, and they found the j^. ^^
pannel guilty of the common law charge as libelled, but Poaching,
without the aggravation of striking with the gun.
In respect of which verdict, the pannel was sentenced
to ten months imprisonment.
SOUTH CIRCUIT.
JEDBURGH.
Spring 1850.
April 8.
Judges — Lords Mackenzie and Ivoby. 18S0.
Her Majesty's Advocate. — E. F. Maitland A.D.
AGAINST
George Howden. — J. Shaw.
Declaration — "Witness. — Held, that where a declaration is sworn to
have been freely and voluntarily emitted by two witnesses uncon-
uected with the fiscal's office, it may be read without calling the
Magistrate who took it, even though one of the witnesses said the
prisoner requested an alteration to be made, which did not appear
to have been done.
Geoege Howden was charged with Forgery, and also ]Sro. 59.
as Using and Uttering as Genuine a Forged Bill of Howden.
Exchange or other Writing. jedburgh.
April 8.
In so far as, you the said George Howden being a member of, or ^^^"^
contributor to, a friendly society or other similar association at or near Forgery.
Galashiels, in the parish of Galashiels, and shire of Selkirk, and in the
parish of Melrose, and shire of Roxburgh, or in one or other of said
parishes, or carrying on its operations there, calling itself or kn6wn as
The Friendly Yearly Society, or having some similar designation, and
you the said George Howden having applied to Walter Patersou, inn-
keeper, and then and, now or lately residing in or near the Black Bull
352 CASES BEFORE THE HIGH COURT
No. 59. lun, situated in or near Galashiels, in the parish of Galashiels, and
Howden. ^'■'re of Selkirk, then acting as box-master or treasurer of said society,
Jedbureli "'" *" ^°™® other person or persons acting for behoof of said society,
April 8. for a loan from the funds of said society ; and the said Walter Pater-
son, or some other person to the prosecutor unknown, having written
Forgery, u bill of exchange or other writing, in the following or similar terms : —
' £5 . 4 . Stg Galashiel 3P' dec"^ 1849.
' At one Two Three Four Five Six Seven eight and nine
' months after date pay to me or my order by usual instalments as
' Treasurer of the Galashiel Yearly Benfiet Society the sura of Five
' Pounds Four Shillings Sterling.
' To George Howden
' Weaver
' Galashiel;'
and the said Walter Paterson having signed the said bill of exchange
or other writing, as drawer thereof, you the said George Howden did,
on a day or days between the 25th and 31st days of December 1849
inclusive, the particular day or days being to the prosecutor unknown,
or on one or more of the days of that month, or of November imme-
diately preceding, or of January immediately following, and within or
near the house situated in or near Stirling Street of Galashiels, in the
parish of Melrose, and shire of Roxburgh, then and now or lately oc-
cupied by you the said George Howden, or at some other place or
places in the shires of Roxburgh or Selkirk to the prosecutor unknown,
wickedly and feloniously, forge and adhibit, or cause and procure to
be forged and adhibited upon the said bill of exchange or other writing,
the subscriptions ' Robert Howden,' and ' Andrew Clapperton,' or one
or other of them, as the subscriptions of the joint acceptors with your-
self of said bill of exchange or other writing, intending the said sub-
scriptions to pass for, and to be received as, respectively, the genuine
subscriptions of Robert Howden junior, a weaver, then and now or
lately residing in or near Galashiels, in the parish of Galashiels, and
shire of Selkirk, and of Andrew Clapperton, a spinner, then and now
or lately residing in or near Galashiels, in the parish of Melrose afore-
said : Further, having subscribed your own name to the said bill of
exchange or other writing as a joint-acceptor thereof, you the said
George Howden did, on the 31st day of December 1849, or on one or
other of the days of that month, or of November immediately preced-
ing, or of January immediately following, in or near the Black Bull
Inn aforesaid, then and now or lately occupied by the said Walter
Paterson, wickedly and feloniously, use and utter, as genuine, the said
bill of exchange or other writing, having thereon the said forged sub-
scriptions, you knowing the same to be forged, by then and there de-
livering the same, or causing the same to be delivered on your behalf,
to the said Walter Paterson, and to John Newlands, then and now or
lately foreman in the employment of William Roberts and Company,
AND CIRCUIT COURTS OP JUSTICIARY. 353
manufacturers in or near Galashiels, and then and now or lately re- No. ;S9.
siding in or near Galashiels, in the parish of Galashiels aforesaid, and Ho^^fn_
to William Bonnington, a joiner, then and now or lately residing in — - — —
or near Galashiels, in the parish of Galashiels aforesaid, or to one April 8. '
or more of them, acting as a committee, or for behoof, of the said ^^^0-
society, in order that you might receive the amount of said forged bill Forgery,
of exchange or other writing in loan from said society ; and the amount
thereof was accordingly then and there received by you in loan as
aforesaid.
The declarations not having been admitted, the Public
Prosecutor, for the purpose of substantiating them,
called, besides the Procurator-fiscal, two witnesses to
each, one of whom was clerk to the Sheriff-Clerk, and
the other two, respectively, constables in Selkirk.
On cross-examination one of the constables deponed,
that, at the time when the last declaration was taken,
the prisoner had requested that an alteration might be
made in his declaration. It appeared from the declara-
tions themselves that no alteration had been made.
J. Shaw, for the prisoner, thereupon submitted, that
the declarations could not be read, in the absence of
the Magistrate before whom the declaration was made,
case o{ M'Gaven, May 11, 1846, Arkley, p. 67, and case
of Vallance, High Court, Nov. 30. 1846, Arkley, p. 181.
The principle of those cases applied here most empha-
tically, as it had been deponed to by one of the wit-
nesses that the party had requested an alteration, which
was shewn not to have been made by the declarations
themselves, and the presence of the Sheriff who took
the declaration was important to the prisoner, in order
that the circumstance might be explained.
E. F. Maitland. — There was no direct decision to
the effect that the Magistrate who took the declaration
was a necessary witness, in order that the declaration
might be read, and in the present case the declara-
tions were sworn to have been freely and voluntarily
given by two parties besides the Procurator-fiscal.
Lord Mackenzie said, that he thought the Court
would not be warranted in rejecting the declarations on
354 CASES BEFORE THE HIGH COURT
No. 69. the authority of the cases mentioned, as neither of those
George "' i • • rpi,
Howden. cascs appeared to have been direct decisions. Inere was,
Jedburgh, moreover, this difference, that in this case there were
April 8. ' , ,
i8flo. two witnesses to each declaration, who were not con-
Forgery. " nected with the fiscal's office, which was enough to dis-
tinguish it from the case of Vallance, the authority of
which in the particular circumstances he did not mean
to impeach.
Lord Ivoey concurred.
The Jury, by a majority, found the prisoner guilty as
libelled.
In respect of which verdict of Assize, the pannel was
sentenced to be imprisoned for the period of two years.
DUMFRIES.
Judges — Lords Mackenzie and Ivory.
Her Majesty's Advocate — E. F. Maitland A. D.
April 27.
1850.
Helen Daly. — J. M. Welsh.
Helen Kirk or James. — J. Shaw.
Evidence — Procurator-Fiscal. — Circumstances in which the clerk
to the Procurator-Fiscal was held inadmissible as a witness, to mat-
ters out of his own department.
No. 60. Helen Daly and Helen Kirk or James, were ac-
Helen Daly '
and Helen cusod respectively of Theft, and Reset of Theft :
Kirk or ^ •'
James.
Dumfries. In SO FAR AS, on the 23d or 24th day of November 1849, or on one
April 27. or other of the days of that month, or of October immediately preced-
■ '— ing, or of December immediately following, in or near a close in or
Theft, &e. ^^^^ High Street of Dumfries, leading to the house, situated in or near
said close, then and now or lately occupied by William Smith, a per-
fumer, then and now or lately residing there, or on or near that part
of the High Street aforesaid which is situated opposite or near to the
entrance of said'^close, you the said Helen Daly did, wickedly and fe-
AND CIRCUIT COURTS OF JUSTICIARY. 355
loniously, steal and theftuously away take, from the pocket or person No. ,60.
of John Edgar, then and now or lately a draper in or near High Street „n,^Helen
aforesaid, a gold watqh, and part of a gold guard-chain, the property, Kirk or
or in the lawful possession, of the said John Edgar : And you the said "'°^'
Helen Daly are habite and repute a thief, and you have been previ- Dumfries,
ously convicted of theft : Likeas, the said gold watch above libelled jgso. '
having been, time and place above libelled, stolen by you the said "nmTIfr&r
Helen Daly, or by some other person or persons to the prosecutor un-
known, you the said Helen Kirk or James did, on the 24th day of
November 1 849, or on one or other of the days of the days of that
month, or of October immediately preceding, or of December immedi-
ately following, or ai, some other time to the prosecutor unknown, in
or near the house or premises situated in or near High Street of Dum-
fries aforesaid, then and now or lately occupied by John James, a
publican, husband of yon the said Helen Kirk or James, or elsewhere
in or near Dumfries to the prosecutor unknown, wickedly and feloni-
ously, reset and receive the stolen gold watch above libelled, you well
knowing the same to have been stolen.
In the course of trial, David Rae, constable, de-
poned—
To hearing the prisoner say, ' she would find the watch if allowed
' time.' She wished to go alone to find it. Mr M'Miun and witness
went with her to her own house. Mr M'Minn went up stairs with
her. I cannot say of my own knowledge what occurred there. They
then went to another house.
George M'Minn, examained in initialibus. — I am clerk to Alex-
ander Young, Procurator-fiscal. I know the charge against the pri-
soner. I have written some of the papers in the case, and may have
read the whole of them. I have precognosced some of the witnesses.
I have taken no part in the prosecution, except the recovery of the
watch, and what I have before mentioned.
J. Shaw then submitted, that thfe witness was incom-
petent, on the ground of agency and partial counsel ;
case of Gordon Robertson, High Court, Feb. 19, 1849,
ante, p. 186.
Maitland, a. D. — There was a distinction between
the Fiscal and the Fiscal's clerk. In many cases the
former might be incompetent, while the latter might be
received.
LoED Ivory. — I would rather not be pressed to give
a decision on circuit. I think there might have been
356 Casks before the high court
No. 60. xnore doubt had the witness been called to testify to
Helen Daly
and Helen points of procedure connected with his office ; but as he
James, appears to be produced for the purpose of corroborating
Dumfries, and oven supplementing the evidence of Eae, a primary
?8so. ' witness in the cause, and would thereby become a wit-
Theft, &c. ness to matters out of his proper department, there
would be danger in admitting h|m, after he has admitted
that he had read the declarations of the other witnesses,
some of whom he had precognosoed.
LoKD Mackenzie. — I concur ; though I would not
wish to go further than the Justice-Clerk in the case of
Robertson, as to deciding any general point.
The Jury found the pannels guilty as libelled.
In respect of which verdict of assize, the pannel Daly
was sentenced to seven years transportation, and the
pannel James to be imprisoned for twelve months.
Her Majesty's Advocate — E. F. Maitland A.D.
April 28. AGAINST
1850.
Ebenezer Beattie — J. Shaw.
Stamp — Production. — Held, that an unstamped receipt was admis-
sible to shew theft from an employer, although it was the only evi-
dence against the employer that his claim was discharged against the
debtor.
Ebeneze'r Ebenezer Beattie, publicau in Annan, was indicted
• ^^°'"''- for Theft ; as also, Breach of Trust and Embezzlement :
Dumfries.
April 28.
'^^"- In so far as, you the said Ebenezer Beattie having yeen employed
Theft, &c, as a clerk or collector by Elizabeth Moon or Gass, a widow, then and
now or lately a brewer in or near Annan, in the parish of Annan, and
shire of Dumfries, and then and now or lately residing there, and you
the said Ebenezer Beattie having, in the course of your said employ-
ment, collected and received payment, for behoof of the said Elizabeth
Moon or Gass, of various accounts for ale and porter due to her ; And
MORE PARTICDLARLY (1.), you the said Ebenezer Beattie having, in
AND CIRCUIT COURTS OF JUSTICIARY. 357
the course of your said employment, on or about the 9th day of May No. 6)
Ebenezt
Beattie.
1848, or on one or other of the days of that month, or of April iinme- Ebenezer
diately preceding, or of June immediately following, in or near the
house or inn or other premises situated in or near the village of Spring- t^^^i^g'
field, in the parish of Graitney, and shire of Dumfries, then and now 18S0.
or lately occupied by David Fulton, then and now or lately innkeeper Theft, &c.
there, received as aforesaid, for behoof of the said Elizabeth Moon or
Gass, from the said David Fulton, the sum of £21 sterling, or there-
by, in payment, or part payment, of an account for ale, or other fur-
nishings, due by the said David Fulton to the said Elizabeth Moon or
Gass, you the said Ebeuezer Beattie did, at some time or times be-
tween the 8th day of May 1848 and the first day of April 1849, the
particular time or times being to the prosecutor unknown, in or near
the house in or near Annan, then and now or lately occupied by you
the said Ebenezer Beattie, or at some other place or places in the shire
of Dumfries to the prosecutor unknown, wickedly and feloniously,
steal and theftuonsly away take, £8, 13s. sterling, or thereby, part of
the said sum of £21 sterling, or thereby, received by you as aforesaid
from the said David Fulton : Or OTHERVsrisE, time or times and place
or places last above libelled, yon the said Ebenezer Beattie did, wick-
edly and feloniously, and in breach of the trust reposed in you in vir-
tue of your said employment, embezzle and appropriate to your own
uses and purposes the said sum of £8, 13s. sterling, or thereby:
LiKEAS (2.), you the said Ebenezer Beattie having, iu the course of
your said employment, on or about the 5th day of September ] 848, or
on one or other of the days ef that month, or of August immediately
preceding, or of October immediately following, In or near the house
situated at or near Stapleton Toil-Bar, in the parish of Dornock, and
shire of Dumfries, then and now or lately occupied by David Byres,
then and now or lately toll-keeper there, received as aforesaid, for be-
hoof of the said Elizabeth Moon or Gass, from the said David Byres,
the sum of £12:1:6 sterling, or thereby, in payment or part pay- •
ment of an account for ale and porter, or other furnishings, due by the
said David Byres to the said Elizabeth Moon or Gass, yon the said
Ebenezer Beattie did, at some time or times between the 4th day of
September 1848 and the 1st day of April 1849, the particular time or
times being to the prosecutor unknown, in or near the said house situ-
ated in or near Annan, then and now or lately occupied by you the
said Ebenezer Beattie, or at some other place or places in the shire of
Dumfries to the prosecutor unknown, wickedly and feloniously, steal
and theftuously away take, £4 : 6 : 6 sterling, or thereby, part of the
said sum of £12 : 1 : 6 sterling, or thereby, received by you as afore-
said from the said David Byres : Oe otheewise, time or times and
place or places last above libelled, you the said Ebenezer Beattie did,
wickedly and feloniously, and in breach of the trust reposed in you in
virtue of your said employment, embezzle and appropriate to your own
358 CASES BEFORE THE HIGH COURT
No. 61. uses and purposes the said sum of £4:6:6 sterling, Or iheteby:
^B^ttie.' I'lK^As (3.), you the said Ebenezer Beattie having, in the course of
^jT : — your said employment, on or about the 29th day of September 1848,
Aprlm!' or on one or other of the days of that month, or of Au-gust immedi-
18S0. ately preceding, or of October immediately following, in or n«ar the
Theft, &c. shop or other premises situated in or near Queensberry Street of Dum-
fries, then and now or lately occupied by Robert Shanks, then and
now or lately a painter, grocer, and spirit-dealer there, received as
aforesaid, for behoof of the said Elizabeth Moon or Gass, from Isabella
Sloan or Shanks, wife of, and then and now or lately residing with,
the said Eobert Shanks, in or near Quensberry Street aforesaid, the
sum of £l sterling, or thereby, in payment or part payment of an ac-
count for ale, or other furnishings, due by the said Robert Shanks t«»
the said Elizabeth Moon or Gass, you the said Ebenezer Beattie did,
at some time or times between the 28th day of September 1848 and
the 1st day of April 1849, the particular time or times being to the
prosecutor unknown, in or near the said house situated in or near
Annan, then and now or lately occupied by you the said Ebenezer
Beattie, or at some other place or places in the shire of Dumfries to
the prosecutor unknown, wickedly and feloniously, steal and theftu-
ously away take, the said sum of £l sterling, or thereby, received by
you as aforesaid from the said Isabella Sloan or Shanks : Ob other-
wise, time or times and place or places last above libelled, you the
said Ebenezer Beattie did, wickedly and feloniously, and in breach
of the trust reposed in you in virtue of your said employment, em-
bezzle and appropriate to your own uses and purposes the said sum of
£l sterling, or thereby : Likeas (4.), you the said Ebenezer Beattie
haviug, in the course of your said employment, on or about the eth
day of January 1849, or on one or other of the days of that month, or
of December immediately preceding, or of February immediately fol-
lowing, in or near the shop or other premises situated in or near
Queensberry Street of Dumfries, then and now or lately occupied by
David Johnston, then and now or lately a grocer and provision-dealer
there, received as aforesaid, for behoof of the said Elizabeth Moon or
Gass, from the said David Johnston, the sum of £3:10:6 sterling,
or thereby, in payment or part payment of an account for ale, or other
furnishings, due by the said David Johnston to the said Elizabeth
Moon or Gass, you the said Ebenezer Beattie did, at some time or
times between the 5th day of January 1849 and the 1st day of April
1849, the particular time or times being to the prosecutor unknown, in
or near the said house situated in or near Annan, then and now or
lately occupied by you the said Ebenezer Beattie, or at some other
place or places in the shire of Dumfries to the prosecutor unknown,
wickedly and feloniously, steal and theftnously away take the said
sura of £3 : 10 : 6 sterling, or thereby, received by you as aforesaid
from the said David Johnston : Or otherwise, time or times and
AND CIRCUIT COURTS OF JUSTICIARY. 359
place or places last above libelled, you the said Ebenezer Beattie did, No. 61.
wickedly and feloniously, and in breaofi of the trust reposed in you in BeaUie."^
vir*«e of your said employment, embezzle and appropriate to your own -^ — „ .
uses and purposes the said sum of £3 : 1 0 : 6 sterling, or thereby : April 28.
LiKEAs (5.), you the said Ebenezer Beattie having, in the course of
your said employment, on or about the 17th day of February 1849, or Theft, &c.
on one or other of the days of that month, or of January immediat^y
preceding, or of March immediately following, in or near the house or
inn or other premises called the Globe Inn, situated in or near the High
Street of Dumfries, then and now or lately occupied by Mary Oarru-
thers or Graham, a widow^, then and now or lately a publican, resid-
ing there, received as aforesaid, for behoof of the said Elizabeth Moon
or Gass, from the said Mary Carruthers or Graham, or from Elizabeth
Graham, daughter of, and then and now or lately residing with, the
said Mary Carruthers or Gral&m at the Globe Inn aforesaid, the sura
of £9 sterling, or thereby, in payment or part-payment of the balance
of an account for ale, or other furnishings, due by the said Mary Car-
ruthers or Graham to the said Elizabeth Moon or Gass, you the said
Ebenezer Beattie did, at some time or times between the 1 6th day of
February 1849 and 1st day of April 1849, the particular time or
times being to the prosecutor unknown, in or near the said house situ-
ated in or near Annan, then and now or lately occupied by you the
said Ebenezer Beattie, or at some other place or places in the shire of
Dumfries to the prosecutor unknown, wickedly and feloniously, steal
and theftuously away take, £4 sterling, or thereby, part of the said sum
of £9 sterling, or thereby, received by you as aforesaid from the said
Mary Carruthers or Graham, or from the said Elizabeth Graham :
Or otheewise, time or times and place or places last above libelled,
you the said Ebenezer Beattie did, wickedly and feloniously, and in
breach of the trust reposed in you in virtue of your said employment,
embezzle and appropriate to your own uses and purposes the said sum
of £4 sterling, or thereby : Likbas (6.), you the said Ebenezer
Beattie having, in the course of your said employment, on or about
the 10th day of March 1849, or on one or other of the days of th££*
month, or of February immediately preceding, or of April immediately
following, in or near the house or inn or other premises, situated in or
near Queensberry Street aforesaid, then and now or lately occupied by
Thomas Gowanlock, then and now or lately an innkeeper, and then
and now or lately residing there, received as aforesaid, for behoof of
the said Elizabeth Moon or Gass from the said Thomas Gowanlock,
the sum of £5 sterling, or thereby, in payment or part-payment of an
account for ale and porter, or other furnishings, due by the said
Thomas Gowanlock to the said Elizabeth Moon or Gass, you the said
Ebenezer Beattie did, at some time or times between the 9th day of
March 1849 and 1st day of April 1849, the particular time or times
being to the prosecutor unknown, in or near the said house situated in
2 A
360 CASES BEFORE THE HIGH COURT
No. 61. or near Annan, then and now or lately occupied by you the said
Beattie' -Ebenezer Beattie, or at some other place or places iu the shire of
— — — — Dumfries to the prosecutor unknown, wickedly and feloniously, steal
April 28.' ^^^ theftuously away take, £2 sterling, or thereby, part of the said
■'^^'*- sum of £5 sterling, or thereby, received by you as aforesaid from the
Theft, &c. said Thomas Gowanlock : Ok otherwise, time or times and place or
places last above libelled, you the said- Ebenezer Beattie did, wickedly
and feloniously, and in breach of the trust reposed in you in virtue of
your said employment, embezzle and >appropriate to your own uses
and purposes the said sum of £2 sterling, or thereby ; the said several
sums so stolen or embezzled and appropriated by you, as above li-
belled, being the property or in the lawful possession of the said Eliza-
beth Moon or Gass, or under the charge of you the said Ebenezer
Beattie, and the same consisting of bank or banker's notes, and gold,
silver, or copper coin, or one or more ^them, the particular kind and
description of notes or coin being to^e prosecutor unknown ; and
you did wilfully fail to enter the said sums stolen or embezzled by yon
as before libelled in the cash-book or other account-book kept by yon
for behoof of the said Elizabeth Moon or Gass, in the course of your
said employment.
In the course of the proof, David Fulton, innkeeper,
Springfield, having deponed —
That he knew the prisoner, and had dealt with Mrs Gass through
him, who acted as her clerk, and received payment on her account.
The prisoner came to his house on 9th May 1848, and got payment of
an account being £2 1 .
The Advocate-Depute was then about to put into
the hands of the witness an unstamped paper, purport-
ing to be a receipt by the pannel of the sum mentioned
by the witness.
J. Shaw objected to the admissibility of this docu-
ment. The indictment charged that the pannel had
either stolen or embezzled certain monies, the property
of Mrs Gass, and the document sought to be given in
evidence, was for the purpose of shewing that the money
which the prisoner was charged to have embezzled was
her property. It would not, under the stamp act, be
admissible as a discharge to her former debtor, and con-
sequently could not be admitted to prove that the pri-
soner had abstracted the property of Mrs Gass, whose
AND CIRCUIT COURTS OF JUSTICIARY. 361
rierht aarainst her customer remained unaffected thereby. No. 6i.
o ° «» 1 . 1 Ebenezer
Had the prosecutor libelled the offence alternatively, Beattie.
as aarainst either Mrs Gass or her customer, the objection Dumfries.
° , . 1 •, . April 28.
would have been obviated ; but as it then stood, it was isso.
part of the issue that it was Mrs Gass alone who had been Theft, &c.
defrauded, which could not be established by any im-
probative document. This case differed altogether from
those where the offence committed lay in the creation of
the instrument itself, as in the case of forged bills of ex-
change, or receipts on unstamped paper. In such cases,
the pannel was not entitled to plead an evasion of the
stamp law to screen him from his criminal act ; but here
the receipt was extrinsic lo the offence itself, and it was
only produced for the purpose of shewing a discharge of
the obligation due to Mrs Gass from her customer.
E. F. Maitland A.D. — ^The objection came too soon.
Whether or no it being an improbative document would
have any effect upon the cause as it came out in proof,
would be for the Jury to determine, under the direction
of the Court ; but at present the document was admis-
sible amongst other things, for the purpose of shewing
that the pannel had been employed as clerk or collector
by Mrs Gass, and had, in the course of his employment,
given said receipt as her professed clerk.
Lord Mackenzie, — I think this objection must be
repelled. I think that it would have been a good libel
to have alleged that the pannel had obtained money on
behalf of another, although he only gave an unstamped
receipt. And if I am right in that, it follows that an
unstamped receipt may be given in evidence.
Lord Ivory. — It is also very important to observe,
that the receipt may be very material to establish the
capacity of clerk in which the pannel is said to have acted.
The prisoner subsequently pleaded guilty of embezzle-
ment, under the 1st, 4th, 5th, and 6th charges.
In respect of which, the Court sentenced him to be
imprisoned for the space of one year.
362 CASES BEFORE THE HIGH COUKT
Mav I. AYR.
1850.
LoEDS Mackenzie and Ivory.
Her Majesty's Advocate — E. F. Maitland A.D.
John Barr — Boyle,
Evidence — Partial Counsel. — Circumstances in which a witness
was held admissible, notwithstanding he had precognosced some of
the witnesses.
No. 62. John Barr was charged with Rape j As also, with As-
John Barr. g^ult with Intent to Ravish ; As also, Assault, committed
^^\ to the effusion of blood, serious injury of the person, and
i850. danger of life :
Rape, &c.
Im so far as, on the night of the 23d, or morning of the 24th, days
of November 1849, or on one or other of said days, or on one or other
of the days of said month, or of October immediately preceding, or of
December immediately following, on or near that part of the public
road from Kilwinning, in the parish of Kilwinning, to the village of
Stevenston, in the parish of Stevenston, both in the shire of Ayr
which is at or near to, or in the vicinity of, the entrance leading from
said road to the steading of the farm- or lands of West Doura or Doura,
in the parish of Kilwinning aforesaid, then and now or lately occupied
or tenanted by Robert Blair, then and now or lately residino' there,
and on or near to that part of said road which is adjoining or near to
the said farm or lands of West Doura or Doura, and in or near a field
called or known as the East Laigh Park, or by some similar name, or
of which the name is to the prosecutor unknown, which is situated on
said farm or lands of West Doura or Doura, and is adjoining or near
to the southern side of said road, or at or near one or more of said
places, all in the parish of Kilwinning aforesaid, you the said John
Barr did, wickedly and feloniously, attack and assault Mary Campbell
or Donaldson, a widow, then and now or lately residing in or near the
village of Stevenston aforesaid, and did drag or force her from said
road into said field, and did, in or near said field, strike her with your
fists, and with some iron or other instrument to the prosecutor un-
AND CIRCUIT COURTS OF JUSTICIARY. 363
known, repeated severe blows on or about the face and head and other No. B2.
parts of her person, and did knock or force her down upon the ground, ■"a.n'.
and did hold her down, and did take down or unloose your trowsers, Ayr.
. ■ . Mav 2
and did raise her petticoats, and did lie upon her and struggle with her, jbso.
and. did have carnal knowledge of her person forcibly and against her :r — — 7 —
will, and did ravish her j and you did thereafter, then and there, again
strike her with your fists, and with some iron or other instrument to
the prosecutor unknown, repeated severe blows on or about the face
and head and other parts of the person ; and you did otherwise mal-
- treat and abuse her ; by all which, or part thereof, the said Mary
■ Campbell or Donaldson was severely cut and bruised, and was seri-
ously injured in her person, to the effusion of her blood, and to the
danger of her life : Ob othe»wi8E, time and places or place above
libelled, you the said John Barr did, wickedly and feloniously, attack
and assault the said Mary Campbell or Donaldson, and did drag or
force her from said road into said field, and did in or near said field,
strike her with your fists, and with some iron or other instrument to
the prosecutor unknown, repeated severe blows on or about the face
and head and other parts of her person, and did knock or force her
down upon the ground, and did hold her down, and did take down or
unloose your trowsers, and did raise her petticoats, and did lie upon
her and struggle with her, and did attempt to have carnal knowledge
of her person forcibly and against her will ; and this you the said John
Barr did with intent to ravish the said Mary Campbell or Donaldson ;
and you did thereafter, then and there, again strike her with your
fists, and with some iron or other instrument to the prosecutor un-
known, repeated severe blows on or about the face and head and other
parts of her person ; and you did otherwise maltreat and abuse her ; by
all which, or part thereof, the said Mary Campbell or Donaldson was
severely cut and bruised, and was seriously injured in her person, to
the eflfusion of her blood, and to the danger of her life.
In the course of the trial, a witness of the name of
John Hutchinson, designed in the list of witnesses as a
messenger-at-arms in Ayr, was adduced on behalf of the
Crown, who deponed as follows : —
I am a messenger-at-arms. Went to Mrs D.'s house on Sunday,
25th November. She described the person who had injured her. She
could not give his name, and said she knew nothing about him. I was
present at pannel's apprehension. He answered exactly the descrip-
tion I had got. She told me of some scratches on his face. I found
scratches on his face. Mrs D. described the field where the thing had
happened. She afterwards shewed me the fiejd when able to go out.
I had in the meanwhile been on field from her description. It was the
364 CASES BEFORE THE HIGH COURT
No. 62. same. It waa on same Sunday I first went to the field. I found a
John BaiT. quantity of blood at two places, and at both the ground was very much
Ayr. torn. It was soft and in grass. I observed at one of the places cow
^8S0^" ''"°g- This was the furthest from the gate, and the greatest quantity
of blood was there. Found a number of onions, a piece of orange
Ilape, &c. iialf-sucked, a quantity of suet, at the place where the greatest quan-
tity of blood was. The prisoner was apprehended next morning, Mon-
day, at 7 A. M. I first took him to the inn at Dairy. I left him there
with Peter Hutchison. I returned to his house, a few minutes after
taking him to the inn. Eadie was with me. Pannel was in bed when
I apprehended him. He dressed himself, and I took him away. When
I returned to his house, I took possession of his clothes. Those on
him are the same. I saw him put them on to-day. This bonnet I
found in his house. He has now on a white shirt, which I also found
in his house. I afterwards shewed those clothes to Dr Hutchison, and
afterwards took them to Edinburgh, to Dr Douglas Maclagan. They
were marked with sealed labels, so as to preserve evidence of identity.
I had kept them in custody up to that time, when I delivered them to
Dr Maclagan. They are in precisely the same state as when I found
them. There were stains on outer clothes. They appeared to be blood.
I found marks of cow-dung on the white shirt. Eadie was with me
when Mrs D. shewed me the field. I know the road from Kilwinning
to Dairy. Distance from Mrs M'Nish's to schoolhonse, about from
SO to 40 yards ; may be a good deal more. I am not certain.
Cross-examined. — I occasionally act as clerk in Fiscal's office, and
I take precognitions for him. I took two or three statements in this
case, from parties at whose houses it had been said Mrs Donaldson had
been drinking. I recollect of taking precognitions from threaS parties
who have been examined to-day, and may have taken others, bufel for-
get if I did so.
Boyle thereupon objected to the witness being further
examined, and requested the Judge to inform the jury
that his evidence was inadmissible, on the ground of
agency and partial counsel, and cited the cases oi Stephens,
April 20. 1839 ; M'Clure, March 15. 1848 ; Robertson,
February 9. 1849.
Maitland. — Those cases do not apply, as in all of
them the party sought to be adduced was in a different
situation from that of the present witness. It could not
be contended that the objection of partial counsel was to
be applied with equal strictness in criminal as in civil
cases. Were that so, it would exclude the evidence of
18S0.
Bape, &c.
AND CIRCUIT COURTS OP JUSTICIARY. 365
policemen, whose duty it was to get up all the evidence No. 62.
. , T , • 1 • John Barr.
possible agaitist a wrong-doer. In this case, the witness
was not then employed by the fiscal, and it was quite May 2.
competent for him to have" taken all the steps he did,
and without the fiscal's authority.
The Court, after considering the cases cited, repelled
the objection to the admissibility of the' witness, holding
that, however indiscreet the fiscal had been in allowing
the witness to take such important steps in the prosecu-
tion as he appeared to have done, there was not enough
to exclude his testimony.
The witness was then recalled, and his examination
proceeded with.
The jury unanimously found the pannel guilty as li-
belled.
In respect of which verdict of assize, the Couet sen-
tenced the pannel to be transported for the period of his
natural life.
HIGH COURT.
Present, • J-f-
The Lord Justice-Clerk,
Lords Mackenzie and Moncreiff,
Her Majesty's Advocate — Sol.-Gen. Moncreiff—Deas A.D.
AGAINST
Daniel Fraser. — Kinneap.
Indictment — Rbletancy — Description. — Held that in modem
practice it was sufficient to describe the article stolen by a generic
name, under which the party injured could identify it.
Theft. — Direction to the Jury, that if a party receive an article for
the purpose of pledging it, he may be guilty of stealing the same,
although he actually pledge it, if his purpose was all along to ap-
propriate the advance thereon to himself.
366 CASES BEFORE THE HIGH COURT.
No. 63. Daniel Feaser was charged with Theft, aggravated
Eraser, by being habit and repute a thief, and previously con-
High court, victed of Theft :
June 3.
'__ In so par as, on the 23d day of April 1850, or on one or other of
Theft. i\yQ Jays Of that month, or of March immediately preceding, or of May
immediately following, within or near the house situated in or near
Warriston's Close, High Street, in or near Edinburgh, then and now
or lately occupied by Elizabeth M'Dougal or Fraser, then and now
or lately residing there, you the said Daniel Fraser did, wickedly and
feloniously, steal and theftuonsly away take, two gowns, the property,
or in the lawful possession, of Ann Fraser or Blacklock, daughter of
and then and now or lately residing with, the said Elizabeth M'Dougal
or Fraser, or in the lawful possession of the said Elizabeth M'Dougal
or i'raser.
KiNNEAR objected to the relevancy of the indictment,
on the ground that the articles stolen were not suffi-
ciently described. The pannel was entitled to every
information which the Public Prosecutor had, and in
several cases the Court had animadverted upon the
vagueness of indictments framed like the present ; cases
oi Henderson, Qth'iiovembev 1833, Bell's Notes, p. 205;
Gampbell, same date, ubi supra ; Blackwood, 6th February
1837, Bell's Notes, p. 204; where the reasons on which
the Court had proceeded in the various cases were given.
The value and quality of the articles bearing a generic
name might be totally different.
The Lord Justice-Clerk. — I think the objection
ought to be repelled. No doubt the old practice was
more strict, but at present that strictness has been
abandoned. The whole question is that of identification,
and if the party who has sustained the injury is able to
identify the articles, that is all that is required. Indeed,
in so far as quality is concerned in such cases as the
present, it would require the Public Prosecutor to have
a mercer at his elbow to enable him to frame an indict-
ment, were it necessary for him to describe the material
of which the gown was made ; and, in so far as value is
sought to be made material, of what consequence can
that be? We have every day instances of indictments
AND CIRCUIT OOUETS OP JUSTICIARY. 367
libelling thefts of hams, cheeses, &c., without any aver- ^^^A
ment as to values, to which no one ever thought of ob- Eraser.
jecting, the whole question being whether the party is High Court.
1 1 . 1 . <« 1 ' June 3.
able to identify them. isso.
Lord Mackenzie. — I remember noting long ago that Theft.
there was a change in the practice respecting the strict-
ness required in libelling the description of property-
alleged to have been stolen, and its value, and at that
time I had some doubt as to the propriety of the change,
but that has altogether disappeared, as I have never seen
the pannel suffer any disadvantage from the change.
The objection was repelled.
It appeared in the course of the trial that the pannel
had received one of the gowns for the purpose of pawn-
ing it, and that he had done so, and afterwards appro-
priated the money to himself.
KiNNEAE objected, in his address to the Jury, that this
did not amount to theft of that gown.
The Lord Justice-Clerk, in summing up, told the
Jury, in respect of the objection stated, that the facts
did not support the charge of stealing the first gown. The
Court could not say that if the pannel had taken posses-
sion of the gown with the express purpose of turning it
into money, and then keeping it, it would not have been
theft, but this was not alleged in the indictment, and, as
the proof left the matter in doubt, the charge had better
be withdrawn as to that gown.
The Solicitor-General withdrew the charge as to
that gown.
The Jury, unanimously found him guilty of the rest of
the libel.
In respect of which verdict of Assize, the pannel was
sentenced to be transported for the period of ten years.
368 . CASKS BEFORE THE HIGH COURT
Present,
The Lord Justice-Clerk.
June 11. .,
18S0. Lords Moncreiff and Cockburn.
FiNNiE, Suspender — Neaves.
AGAINST
GiLMOUB, Respondent — A. T. Boyle.
Justices — Closed Doors. — Held, that it was a relevant ground of
suspension that the Justices had tried and sentenced the complainer
in a court from which the public were excluded.
No. 6i. This was a suspension of a sentence pronounced by the
GUmour! JusticBS of Irvine against the suspender, master and
High Court, servants' act, 4th Geo. IV., for sentencing him to thirty-
"^Isso.'" fi'^^ *^^y® imprisonment.
Suspension. This Sentence was sought to be set aside on various
grounds, the principal of which was, that the Magistrates
had held their Court with closed doors at the time when
the suspender was before them.
This was admitted on the part of the respondent, under
this explanation, that the Magistrates had so acted under
an apprehension that the public peace might be disturb-
ed, and a rescue effected, were the populace able to ob-
tain access to the Court.
The CouET held, that, by the common law of Scotland,
Police Courts were public, and that no sentence pro-
nounced at a time when the public were excluded could
be allowed to stand, there being no proof of the neces-
sity for protecting the Court from violence, and accord-
ingly passed the bill of suspension, with expenses.
AND CIRCUIT COURTS OF JUSTICIARY. 369
Present,
The Lord Justioe-Clebk, ''Ttilo'^'
Lords Moncheifp, Cockburn, Wood, and Ivory.
William Campbell Sleigh, Es(j[. and Thomas Russell, Complainers.
—G. G. Bell—Inglis.
against
Richard John Moxey, Respondent — Nedves — Deas.
Suspension — Police Offence — Relevancy. — Held, that it was a
good charge in a Police complaint to allege that the party had been
guilty of a breach of the public peace, by behaving in a disorderly
manner at a public meeting, and interrupting and obstructing the
proceedings.
This was a suspension of a sentence in the Police No.es.
Court of Edinburgh, proceeding on the following com- Rufs'eiu'!
plaint : — ^oxey.
High Court.
' Unto the Honourable the Magistrates of Edinburgh, or any of ^^^1 ^'
' them officiating as Judge in the Police Court of Edinburgh, ^ — —
' the complaint of Richard John Moxey, Superintendaut of Suspension-
' Police, and Procurator-Fiscal of Court for the public
' interest ;
' Humbly Sheweth, — That William Campbell Sleigh, barrister -at-
' law, now or lately residing in Princes Street, Edinburgh, and
' Thomas Russell, an ironmonger, now or lately residing in Lauriston
' Place, near Edinburgh, have been guilty of the crime or oflence of
' committing a breach of the public peace, actors or actor, or art and
' part, in so far as the Right Honourable William Johnston, Lord
' Provost of Edinburgh, having, upon the 1st day of April 1850 years,
' or about that time, called a public meeting of the inhabitants of
' Edinburgh and its vicinity, to be held within the hall situated in
' George Street, Edinburgh, known as the Music Hall, upon the 8th
' day of the said month of April, in compliance with a req^uisition, of
' date the said 1st day of April, subscribed by John Lee, Doctor of
' Divinity, Principal of the University of Edinburgh, and others, re-
' questing the said William Johnston to call a public meeting of the
' inhabitants of Edinburgh and its vicinity opposed to the Bill pre-
' sently before Parliament for legalizing the marriage of a husband
370 CASES BEFORE THE HIGH COURT
No. 65. .' with his deceased wife's sister, with the view of petitioning against
SelU^ ' the Bill J and the said requisitionists, or some of them, and yarious
Moxey. ' other individuals, inhabitants of Edinburgh and its vicinity, opposed
High Court. ' to the said Bill, being, upon the 8 th day of the said month of April
"''^oL^^' ' assembled within the said hall, and the said William Johnston
-: — ' having been appointed chairman tf the said meeting, and having
uspension ^ ^^^^^^ ^^^ ^^^^^ accordingly, the said accused did, both and each, or
' one or other of them, place and time last above libelled, behave in a
' disorderly manner, and interrupt, obstruct, and disturb the proceed-
' ings of the said meeting, and did persist in so doing, though warned
' and admonished by the said William Johnston, and others, to desist
' therefrom, whereby the said William Johnston, as chairman, and
' the parties forming said meeting, or some of them, were annoyed and
' molested, and a breach of the public peace was committed. — It is
' therefore craved that warrant be granted for apprehending and
' bringing the said accused into Court to answer to this complaint ; for
' citing witnesses for both parties ; and that the said accused be there -
' after punished according to law, or that such other judgment be
' given as the case may require. — According to Justice.'
(Signed) ' J. E. Moxey, Sup.'
Which sentence was in the following terms : —
' Edinburgh, XOth April 1850. — The Judge finds this complaint
' proved against the accused by evidence adduced, and finds them
' gnilty accordingly ; therefore fines and amerciates the accused
' William Campbell Sleigh in the sum of two guineas sterling, payable
' to the clerk of Court j and ordains said accused to find sufficient
' caution, acted in the books of Court, under a penalty of ten pounds
' sterling, for good behaviour for six calendar months from and after
' the paynlent of said fine, or from the expiry of the term of imprison-
' ment after mentioned, for non-payment thereof ; and the said accused
' to be incarcerated in the prison of Edinburgh, therein to be detained
' until said fine be paid, and said caution be found ; but for non-pay-
' ment of the fine, not exceeding twenty days from this date, and for
' not finding caution, not exceeding twenty days further from payment
' of the fine, or from the expiry of the terra of imprisonment for non-
' payment thereof ; fines and amerciates the accused Thomas Russell
' in the sum of one guinea sterling, payable to the clerk of Court ;
' sentences and adjudges said accused to be incarcerated in said prison,
' therein to be detained until said fine be paid, but not exceeding ten
' days from this date. — One word deleted."
(Signed) ' William Law.'
The respondent in his 4th and 5th statement of facts
alleged as follows : —
AND CIRCUIT COURTS OF JUSTICIARY. 371
« 4. After the first resolution had been proposed and gi^gj^^^^^j
' seconded, the suspender, Mr Sleigh, rose to speak. '^^^^'"•
' It was seen and understood, as was indeed the fact, — — — -
High Court.
' that he had come to oppose and obstruct the proceed- June 12.
' inffs, and that, if allowed to proceed, this would be the '—-
. . 1 1 • 1 i Suspension.
* effect. The chairman thereupon mtimated to him that
' he would not be allowed to do so ; and when this in-
' timation was disregarded, a great deal of excitement
' and disturbance ensued. The suspender persisted in
' his attempts, in defiance of repeated admonitions, and
* against the manifest feeling of the meeting, and much
' irritation and commotion were occasioned. The re-
' spondent was then called on, in his ofiicial capacity, to
' take the suspender into custody; and the chairman
' having, on an appeal to him by the respondent, de-
' clared that the proceedings were obstructed, and the
' meeting disturbed by the suspender's conduct, the re-
* spondent, who considered that a breach of the peace
' had been so committed, conceived that he had no al-
' ternative but to take the suspender into custody, as
' the only means of restoring order, and preventing more
' serious consequences.'
' 5. A similar scene was repeated afterwards, -when
' the other suspender, Mr Russell, rose and insisted on
* being heard in favour of Mr Sleigh's views, ■yphich he
' had previously intimated in writing to the Lord Provost
' that he meant to support. Mr Russell was also re-
' quired to desist, but refused to do so, and was ulti-
' mately in like manner removed, in consequence of
* similar demands and complaints made to the respondent
' as to the effects of his conduct : after which the busi-
' ness of the meeting proceeded without interruption.'
Inglis, for Suspender. — The complaint did not set
forth any offence. All that was done was alleged to
have taken place at a public meeting, at which the sus-
penders had a right to be present. And what was
charged against them in the minor of the complaint was,
that they behaved in a disorderly manner. This was too
372 CASES BEFORE THE HIGH COURT
No. 65. ambiguous, and was quite consistent that they were
Russell 0. merely out of order, as in speaking to a resolution not
— "'"'•''' then before the meeting, or in other ways not constitu-
june "12! ting a police offence. What was farther alleged, as to
'^^°' the obstruction of the meeting, did not carry the matter
Suspension. ^^^ farther, as, in all cases where a party was out of
order, it necessarily happened that he created an inter-
ruption or obstruction to the meeting. This went to
the whole case, and if the complaint was not so specific
as to shew any offence, then the presiding Magistrate
had no jurisdiction.
The LoED Justice-Clerk. — It would be giving undue
importance to this case to require any answer. The
complaint sets forth, that the suspenders have been
guilty of a breach of the public peace ; and, after setting
forth the place and circumstances where the offence was
committed, alleges that, at the public meeting mention-
ed, the parties behaved in a disorderly manner, and in-
terrupted and obstructed the meeting after admonition
from the Lord Provost, who presided. That such a
charge was proper for the Police Court no one-can doubt ;
and as to what is said as to being disorderly, meaning
that the parties were merely out of order, that was a
matter for the Police Magistrate to adjudicate upon on
hearing the evidence as to the conduct of the parties.
By imposing the sentence, the Magistrate found that
the parties' had been criminally disorderly, and hav-
ing so found, we have no jurisdiction to review his
sentence.
The other Judges concurred. Lord Cockburn remark-
ing, that he considered the complaint as a model for
Police Courts in similar cases.
The note of suspension was accordingly refused, with
expenses.
AND CIRCUIT COURTS OF JUSTICIARY. 373
James Burns, Appellant — Deas.
AGAINST
John Burnbt, Respondent — Young.
Appeal — Jurisdiction — Procedure. — Held, 1st, that the Court of
appeal would not direct enquiry in an appeal against a Police sen-
tence, unless there was some irregularity patent on the proceedings,
or an allegation that the Magistrate had exceeded his jurisdiction.
2d, That the Procurator-fiscal had equal privileges as the rest of the
lieges in respect of offences where pecuniary penalties were alone
sought to be recovered, and that a formal complaint was in such
case unnecessary.
This was a certified appeal from the Glasgow Circuit No. ee.
Court of Justiciary under the following interlocutor: — Bumet.
High Court.
' In respect that it is maintained in this case that an appeal to the ^""^ 12.
Circuit Court of Justiciary is competent in all cases from any sen- . L_
tence of the Magistrates of Glasgow sitting under the Police statute, -A^PP^*'-
and that, in virtue of the general clause of that statute, § 282,i and
1 By statute 6th and 7th Vic, cap. 99, entitled ' An act to conso-
lidate, amend, and extend the provisions of several acts for the better
paving, watching, lighting, and cleansing, and for regulating the
Police of the City of Glasgow, and adjoining districts ; and also for
managing the statute labour of the said city; and for other purposes
in relation thereto,' it is enacted by section 282, ' That if any
person shall be aggrieved by any sentence pronounced by the Magis-
trates under this act, it shall be lawful for such person to appeal to
the Conrt of Justiciary at the next Circuit Court to be held at
Glasgow, or elsewhere, for the "Western Circuit, in the manner and
under the rules, limitations, and conditions contained in an act passed
in the twentieth year of the reign of His Majesty King George the
Second, intituled An act for taking away and abolishing Heritable
Jurisdictions in Scotland ; and it shall not be* competent to appeal
from or to bring the judgment of the Magistrates under this act,
under review, by advocation, suspension, suspension and liberation,
or reduction, or in any way whatever, other than is hereby provided
' for; saving always any right of appeal or other mode of review
' authorized by any other act, under which it is by this act made law-
ful for the said Magistrates or any of them to try crimes or offences :
' Provided always, that no such appeal shall operate as a stay of exe-
374 CASES BEFORE THE HIGH COURT
No. 66. ' in respect, that though this question has been agitated iu various
Burnet!' ' ''^^^^ '"^ *'^>^ High Court of Justiciary, it is believed that the judg-
' nients in those cases have proceeded on special circumstaDces, so that
June 12. ' ' the general question on the efl'ect of the clause of the statute has not
^8^0- ' been definitely settled ; certifies the case to the High Court of
Appeal. ' Justiciary, to be held iu Edinburgh on Monday the 20th day of
' May next, or whatever other day may be appointed for hearing it.'
(Signed) James W. Monchbifp.'
The appeal was presented against a conviction pro.-
ceeding on the following citation : — '
' Central Distrioi Police Ofpiob, Glasgow, 28th January 1S50.
' To James JJurns, auctioneer, 92 Trongate Street, you are hereby
' summoned to compear before the Sitting Magistrate, in the Police
' Court, Glasgow, on the twenty-ninth day of January current, at 10
' o'clock forenoon, to answer to a, complaint at the instance of the
' Procurator-Fiscal of Court, charging you with having on Saturday
' last, within or near the shop or premises occupied or rented by you,
' situated in or near Trongate Street, Glasgow, called or proclaimed,
' or caused to be called or proclaimed, a public sale or auction, to the
' disturbance and annoyance of the inhabitants in the neighbourhood,
' in contravention of the Police Act.
' Colin Campbell, Police Officer.'
The entry in the Police Court book was as follows : —
' Police Cobkt, Glasgow, Tuesday, 29th January, 1850.
' Sitting in Judgment, John Gilmotjb, Esquire, Bailie.
' The Procurator-Fiscal of Court for the Public interest charges the
' Defenders after named and designed with the Crimes, Offences, and
' Contraventions after stated, and craves that on conviction thereof
' they be punished by Fine or Imprisonment, or otherwise disposed
i in terms of Law, viz.' (Signed) ' John Burnet, P.F.'
' 333 James Burns, Auctioneer, 92 Trongate Street. 10/6
' Charged with having, on Saturday last, within or near the Shop
' or premises occupied or rented by him, situated in or near Trongate
' Street, Glasgow, called or proclaimed, _ or caused to be called or pro-
' claimed a Public Sale or Auction, to the disturbance and annoyance
' cution in cases where the sentence or decree awards the payment of
' any money and expenses, unless on consignation of such money and
' expenses, nor, in cases where the sentence or decree awards imprison-
' nient, Uinless on sufficient caution for the appearance of the party in
' such manner as the Judge shall direct, and that without prejudice in
' either case to the caution 6r security required by the said recited act.'
AND CIRCUIT COURTS OF JUSTICIARY. 875
' of the Inhabitants in the neighbourhood, and in Contravention of the No. 66.
' PnliVp Arf Burns «.
foiice Act. ^^^^^_
' On defender's motion, continues the case, in order to his Procura
High Court.
June 12.
1860.
tor appearing. (luit^-) J. G.'
Deas, for the appellant, — There were two questions Appeal.
involved in this appeal ; 1st, one of jurisdiction of the
Court of Appeal, to ascertain the facts as to whether there
had been a contravention of the statute or not ; and, 2d,
as to the validity of the complaint on which the convic-
tion proceeded.
As to the first point, after the case of Lockie M' Whar-
ter. High Court, Feb. 15. 1849 {ante, p. 161), there could
be no doubt that the court of appeal had authority to do
everything which was necessary fully to review the sen-
tence complained of, even though that should involve
the renewed investigation of the facts.
The Lord Justice-Clerk. — Do you contend that the
court of appeal is to sit and hear the complaint anew.
Deas. — That will depend on whether the Judge in
the Superior Court deems such investigation necesssary.
After, the case of Lockie he cannot decline to do so on
the ground of inconvenience.
The Lord Justice -Clerk. — The Court are unani-
mously of opinion that the case of Lockie is not an
authority to the extent you put it. In that case, the ob-
jection stated against the conviction appeared on the
face of the proceedings themselves, arose as to the cor-
rectness of the deduction the Magistrate drew from
the terms in which the confession had been made. No-
thing of that kind arises here, and it is proper that it
should be at once understood, that, neither here, nor in
the Circuit Court of appeal, do we sit to review the
question of guilt or innocence on a relevant complaint,
without some irregularity appearing on the proceedings
themselves.
Deas. — As set forth in the Police booksj the charge
was at the instance of the Procurator-fiscal, but there
2b
376 CASES BEFORE THE HIGH COURT
No. 66. had been no previous complaint by him, although the
Burnet." citatiou borc that there had been such previous complaint.
High Court. The charge -was under the 246th section, and the pro-
"sso. ' ceedings altogether differed from those contemplated in
Appeal, the 266th and 272d, where the proceedings were to be at
the instance of the Procurator-fiscal. The 265th section,
which contemplated the proceedings by private parties,
and did not give the power of imprisonment, was alto-
gether different ; that section, applied against coachmen
for excessive cab-hire, &c., and was altogether different
from complaints at the instance of the fiscal, at whose in-
stance, under the 266th, the punishment of imprisonment
might be awarded. There ought to have been a formal
complaint lodged before citation, and a copy thereof de-
livered at the time the party was cited.
Young. — The proceedings were valid under the 278th
section, the party having not objected in limine, either
on the ground of a regular citation, misnomer, or infor-
mality.
The Lord Justice-Clerk. — This case is clear; the
entry in the Police book shews that the Procurator-fiscal
was acting under the 265th section, and not under the
266th, and the reason why he so acted is obvious. The
act charged was a mere Police offence, which might be
fully punished by means of a fine, and accordingly a fine
is imposed. I think this was quite competent.
Lord Wood. — The argument of Mr Deas, if correct,
would exclude the fiscal from acting "at all under the
265th section, I see nothing in the statute to justify
such a construction of the statute.
The other Judges concurred, and the note of suspen-
sion was refused, with expenses.
AND CIRCUIT COURTS OF JUSTICIARY. 377
Present,
The Lord Justice-General,
July 20.
The Lord Justice-Clerk, 1850.
Lords Mackenzie, Moncreipp, Cookbuhn, Wood, and Ivory.
Her Majesty's Ai>yocATE—SoL-Gen. Moncreiff—G. Young A.D.
AGAINST
David Balfour — Paton.
Statute 1701 — Bail — Letters of Intimation — Criminal Let-
ters.— Held, tbat where a party in prison applies for and serves
letters of intimation under the act 1701, and thereafter, before sixty
days, is liberated on bail at his own request, he may be indicted
anew after the expiration of sixty days, and that criminal letters
are not necessary.
David Balfour, porter and pointsman on the Edin- No. 67.
burgh and Glasgow Railway, was indicted at the Glasgow Balfour.
Spring Circuit upon Culpable Neglect of Duty : High Court.
1850. "
In so far as, you the said David Balfour being, time hereinafter — — — —
libelled, employed as a pointsman upon the Edinburgh and Glasgow Neglect of
Railway, and as such, or in some other capacity, being in charge of Duty,
certain switches or points upon or connected with said railway at or
Garngaber, in the parish of Kirkiutilloch, and county of Dumbarton,
where the Monklands Junction Railway joins the said Edinburgh and
Glasgow Railway, and it being your duty to see and take care that
everything about the switches or points under your charge was right
and in working order, and to keep the same locked or shut, except
when required to be opened to admit of the passage of engines or trains,
you the said David Balfour did, on the 1st day of January 1850, or on
one or other of the days of that month, or of December immediately
preceding, or of February immediately following, in culpable neglect
of your duty above libelled, fail and omit to shut or lock, or to keep
shut or locked, a switch or point under your charge as aforesaid, upon
or connected with said Edinburgh and Glasgow Railway, at or near
Garngaber aforesaid, and upon or connected with a lye or line of rails
leading into a siding at or near the place where the said Monklands
Junction Railway joins the said Edinburgh and'Glasgow Railway, and
did leave the same open, or permit and allow the same to remain open,
378 Cases before the high court
No. 67. at a time when it was not req^uired to be open to admit of tbe passage
David (,f ajiy engine or train, or for any other purpose, and when it was
necessary or proper, for the safety of the lieges, that it should be locked
^J^u'l ^20"^*' °^ ^'^"' ' ^° consequence whereof, a passenger train from Airdrie to
1850. Glasgow, drawn by a locomotive engine, was, time above libelled, pre-
Culpable vented from passing from the said Monklands Junction Railway, on to
Neglect of the main line of the said Edinburgh and Glasgow Railway, at the
" ^' junction of said railways, and was turned or had its course diverted into
the said siding at or near Garngaber aforesaid, and at or near the place
where the said Monklands Junction Railway Joins the said Edinburgh
and Glasgow Railway, and came violently in collision or contact with
a train or number of trucks or other carriages then standing in said
siding, and a great number of the lieges who were in or upon said pas-
senger train, were thereby, and in consequence of the concussion oc-
casioned by said collision, or contact, violently thrown or forced upon
or against one another, and upon or against portions of 'the carriages in
or upon which they were travelling, and were cut, bruised, and
wounded, to the serious injury of their persons, and were put in danger
of their lives : In particular, Robert M'Lachlan, then and now or
lately a clerk to AYilliam Buist and Company, now or lately coal-
merchants in Airdrie, and now or lately residing in Airdrie, was
cut, bruised, and wounded, on or near the head and face, or other
parts of his person, to the effusion of his blood, and the serious
injury of his person ; Ann M'llrevie or Boness, wife of Robert
Boness, a contractor, now or lately residing in or near Airdrie, was
rendered insensible, had one of her ribs fractured, and was other-
wise braised and wounded, to the; serious injury of her person ; Daniel
M'Cormick, a collier's drawer, now or lately residing at or near Raw-
yards, in the parish of New Monkland, and county of Lanark, had his
right hand sprained, and was otherwise bruised and wounded, to the
serious injury of his person ; Barnard M'llhone, a labourer, now or
lately residing at or near Rawyards aforesaid, had two of his teeth
fractured, and was bruised on or near the face, or other part of his per-
son, to tbe serious injury of his person ; Barnard Kean, a miner, now
or lately residing in or near Bell Street of Airdrie, was bruised on or
near the back, to the serious injury of his person ; John Watt, a shoe-
maker, now or lately residing at or near Rawyards aforesaid, was ren-
dered insensible, and was out, bruised, and wounded on or near the
head, and face, and side, or other parts of his person, to the effusion of
his blood, and serious injury of his person ; John Boyd, a labourer,
now or lately residing in or near Rawyards aforesaid, was rendered in-
sensible, had two of his teeth fractured, and was cut, bruised, and
wounded on or near the head and face, or other parts of his person, to
the effusion of his blood, and serious injury of his person ; Margaret
Campbell or Connoway, wife of John Connoway, a miner, now or
lately residing in or near Bell Street of Airdrie, was rendered insen-
sible, and was severely cut above or near the right eye, or other part
AND CIRCUIT COURTS OF JUSTICIARY. 379
of her person, to the effusion of her blood, and the serious injury of her No. ()7.
person ; John Connoway aforesaid was severely cut or wounded across D-if"'!
or near the brow, or other part of his person, to the effusion of his blood.
and serious injury of his person ; John Allan, a miner, now or lately j„iy 20.
residing at or near Rawyards aforesaid, was cut, bruised, and wounded 1850.
■on or near the leg, or other part of his person, to the effusion of his Culpable
blood, and serious injury of his person ; Sarah M'William or Delargy, Neglect of
wife of James Delargy, a mason, now or late residing in or near Bell
Street of Airdrie, was rendered insensible, and was cut, bruised, and
wounded on or near the head, face, and other parts of her person, to
the effusion of her blood, and serious injury of her p&rson; David
Mitchell, now or lately a clerk to James Thomson Rankine, now or
lately a writer in Airdrie, and now or lately residing in or near Chapel
Street of Airdrie, was rendered insensible, and was cut, bruised, and
wounded on the head, face, and side, and other parts of his person, to
the effusion of his blood, and serious injury of his person; Ann
M'Pherson or Sands, wife of James Sands, a waggon-driver, now or
lately residing at or near Hall Craig, near Airdrie, was Cut, bruised,
and wounded, on the head, face, and other parts of her person, to the
effusion of her blood, and serious injury of her person ; and Robert
Sands, collier's drawer, now or lately residing with his father, James
Sands aforesaid, was cut, bruised, and wounded on the face, or other
part of his person, to the effusion of his blood, and serious injury of his
person ; and the said persons, or some of them, by your culpable neglect
of duty above libelled, were put in danger of their lives.
On the case being called^-
Patton, on behalf of the pannel, presented an appli-
cation under the act 1701 for instant liberation ; and he
further objected to the present trial proceeding under
the indictment now called, and pleaded that the pannel
could not be tried under the present indictment, and
could only be tried under criminal letters ; in respect
that, while in custody with a view to trial for the oiFence
now charged against' him, he had obtained a precept for
intimation to the Public Prosecutor under the act 1701,
and had intimated his letters on the 11th of January
last, conform to execution produced. The present in-
dictment was not served until the 9th of April cur-
rent, being more than sixty days from the date of
the intimation ; and further, that the Public Prosecutor
had, upon 27th of February, served upon pannel an in-
380 CASES BEFORE THE HIGH COURT
No. 67. dictment with a view to trial before the High Court,
David '-'
Balfour, but which indictment had not been followed out to a
High Court, conclusion, in terms of the provisions of the said act.
jsso. ' The Court certified the foregoing objection, and it
Culpable Came on to be advised of this date,
^egiect of Patton, for the pannel, stated that he had been in-
carcerated on this charge on the 7th of January 1850.
He raised letters of intimation on the 11th of January;
and on the following day, the 12th, was liberated on
bail. Thereafter he was served with an indictment, re-
quiring him to appear on the 15th of March, on which
day, however, the Public Prosecutor deserted the diet.
Sixty days thus elapsed before fixing the diet after the
service of intimation, after which he was again, on the
9th of April, served with an indictment, requiring him
to appear on the 25th of April, and it was on an objec-
tion to this indictment that the present question arose.
The objection was twofold : —
1st, That no diet was fixed within sixty days of the
date of the letters of intimation ; and,
2d, That the proceedings had not been brought to a
close within a hundred days therefrom.
It was conceded by the Crown, that, had the pannel
been in prison, no such course could be adopted ; and
the question was, whether, as the party was liberated on
bail on the 12th of January, after the letters of intima-
tion had been served at his own request, he was thereby
deprived of the act 1701. That he was not so, was
clear from this : —
1st, That the letters of intimation were competently
raised and served.
2d, From the object and general scope of the enact-
ments in the statute.
The statute had two objects in view.
1st, To prevent undue imprisonment ; and,
2d, To prevent undue delay of trial. The latter be-
- ing clearly as applicable to the case of parties liberated
on bail, as to parties suffering imprisonment. The sub-
AND CIRCUIT COURTS OP JUSTICIARY. 381
iect had been much considered in the case of Macdonald No. 67.
'' David
and Young, 18th June 1832, (Bell's Notes, p. 160,^^) Baifo»r.
where the decision was in favour of the pannel ; and High Court.
'^ July 20.
18A0.
Culpable
" The Opinions in tbis case, copied from the Notes of the Lord Neglect of
Justice-General, are here inserted, on account of the importance of
the question, they not having been before reported.
The Lord Justicb-Glerk. — In delivering our opinions upon this
petition under the act 1701, it is indispensably necessary to keep
correctly in view the facts under which the question to be determined
has been raised.
These are, that two previous indictments, containing a charge of
fraud and falsehood, having been raised against the pannel Charles
Macdonald, and a person named Robert Young, the one containing a
diet of compearance on the 14th February 1831, which was deserted
pro loco et tempore, and the other for the 30th May following, when,
on the panaels appearing, a discussion took place as to the citation of
Young, the proceedings were delayed, and minutes of debate ordered ;
and afterwards the indictment was abandoned, wheu a new indictment,
somewhat varying from the others, was served on the 21st June, the
day of compearance being fixed for the 11th July 1831.
On that day the pannel appeared ; on the diet being called, the
charge was pleaded to, and the indictment found relevant by an interlo-
cutor, and remitting to the knowledge of an assize ; but on motion of
the prosecutor, the diet was continued till 20th July, and warrant
granted for committing the pannel to prison (the crime no doubt being
bailable as had been before acted on.)
The pannel went to prison, and on the day following, the 12th, he
applied for letters of intimation under the act 1701, hj the petition
annexed to prosecutors information.
On the 12th, Lord Medwyn granted the warrant for letters of inti-
mation, also there annexed, which were duly served on the Advocate-
Depute on the 13th July.
The pannel remained after this in prison till the X%th July, when
the warrant of commitment was withdrawn, when he was liberated
or walked out of gaol.
On the 20th, this diet, and all other diets in absence of the pannel,
was continued till the \st of August, and again Continued with other
diets till the ^th November, and again till the 10*A November, when
the pannel being then in court, presented his petition, which is also
annexed to the prosecutor's information, craving, that as the indictment
was not insisted in on the 1st August, the diet fixed for his trixil, nor
fox forty days thereafter, the petitioner should be liberated in terms of
the statute.
382 CASES BEFORE THE HIGH COURT
No. 67. ^as SO considered in the case of Dick and Lawrie,
Balfour. (BcU's Notes, p. 161). The case of Dundas referred to
HighComt. in the case of Macdonald, was to the like effect.
July 20.
1850.
NM^^'^f •'* ** under this state 6/ facts we are now to decide whether the
Duty. pannel ia entitled to the benefit of this act.
As all questions touching the act 17,01 are of importance, both to
the law and the subject, I concurred in ordering this question, to be
argued in informations.
I am glad that course was followed, being free to admit that the dis-
cussion this point has undergone, and the time we have had to consider
it, has been at least of use to myself in forming my opinion upon it.
I am ready to admit, that the object of this statute was not merely
to prevent the evil of undue delays in trials, but also to secure the lieges
against the evil of protracted imprisonment, accompanied with the de-
lay of their prosecutors in instituting charges against them, and follow-
ing them up by trial ; and I am also not disposed to deny, that the
case chiejly contemplated in the provisions of the act, was that of a
prisoner for custody in order to trial, before any indictment was raised
against him, and who was declared entitled to adopt the proceedings
therein pointed out.
/ am equally clear, that no person who is not a prisoner at the time
of applying for letters of intimation is entitled to found upon the
statute ; and I agree also, in the opinion expressed both by Baron
Hume and Mr Burnett, that in regard to the application of the pro- '
visions as to the last period of forty days, in regard to new criminal
letters, the party founding on the act must he in custody ; and that one
on hail cannot found on it.
The question here however is, whether was the pannel, on the 12th
of July last, when he applied for letters of intimation, >■ a prisoner for
' custody in order to trial.' If he truly was so, it remains to be con-
sidered, whether he was not entitled to the protection of the act ?
1. It appears to me that the first question must be answered in the
aj^rmative.
The pannel was a prisoner by the act of the prosecutor, who, after
the interlocutor of relevancy on the 1 1th July was pronounced, instead
of going on with the trial moved a continuation of the diet, and a war-
rant of commitment to the 20th.
It will not do to say this was the act of the court, as the prosecutor
could unquestionably have moved that the commitment should be dis-
pensed with, and the pannel allowed to go at large.
Had this been done the pannel could not have set forth that he was
a prisoner, either in fact or in law.
But having been sent to prison, was he not there 'for custody in
' order to trial.' He was so in the most direct meaning of the terms.
AND CIRCUIT COURTS OF JUSTICIARY. 383
These cases explained the act, and evidenced the con- p"-?/"
sistent practice from the date of the enactment to the Balfour.
present time, shewing that the act applied equally to the ffighCourt.
1850. '
as the prosecutor moved the continuance of the diet of the trial till the Mg„?eotof
20iA ; and he was certainly imprisoned for no other purpose. Duty.
2. While, then, in this precise situation, and under the very words
of the act, he, on the 12tb, applied for and ohtained warrant for letters
of intimation, and on the 13th they were served.
On what grounds, then, is the pannel to be denied the benefit of the
other provisions of the act ?
Can the circumstance of the prosecutor, after having enforced the
warrant of imprisonment till the 19th, then withdrawn it, and concurred
in the pannel's liberation, and that he did not remain a prisoner all
the time contemplated by the act, afford a bar to its application?
I am decidedly clear that it cannot if originally within the application
oi the direct words of the act. Mere relaxation of the imprisonment
which he endured, when he sets its machinery in motionj cannot for
one moment be listened to without a total subversion of the whole pro-
visions of the act.
The prosecutor was too late in this indulgence. It should have been
shewn at the moment the relevancy W2is found, and then it could have
been stated with perfect truth, and in conformity with the whole scope
of the act, the pannel was in no situation applicable to it.
It is no answer, therefore, in my opinion, to say, that neither on
the 1st of August, whatever is held to be the diet prefixed, nor the 9th
of September, when the forty days expired, was the pannel a, prisoner,
and therefore the act is inapplicable as throughout contemplating the
party being all along in confinement. The pannel's being at large
having been by the subsequent act of the prosecutor alone.
The prosecutor had at first placed him within the express predica-
ment of the statute, and it was only after the pannel began to avail
himself of its enactments,, that he thrust him out of prison, and then
turns round and denies that, in consequence of that proceeding, he can
avail himself of the statutory protection.
If the 1st of August is held as the diet duly fixed for the trial under
the Letters of Intimation, the fact of the pannel being then at large
was occasioned by the prosecutor's turning him out of jail, and there-
fore he cannot offer that as a bar to the application of the statute.
On the other hand, if no diet on that or any other day is to be held
as fixed, the pannel is easily protected, his liberation having only been
granted by the prosecutor, after he had set the act in operation in his
favour, and had become entitled to its full benefit.
But it has been further contended, that as, previous to the 12th of
July, when the pannel obtained letters of intimation, a diet /or his trial
384 CASES BEFORE THE HIGH COURT
No. 67. advantage of the accused, whether he was actually or
Balfour, constructively in custody. It was so assumed in the case
uighCourt. of Murrai/, 1826 ; Bell, p. 161.
July 20. "^
18S0.
Ne'iectof ^'^'^ *^*" ^'^^^ °^ ^^^ •^^*' ^'^^'^efore the act does not at all apply to
Duty. his case.
If it is to be held, as the prosecutor seems to maintain, that the diet
■was fixed for the lltk July., and previous to the letters of intimation,
and consequently, that the act did not apply, why was that not judi-
cially stated on the 20*A, to which that diet had been continued ?
No such course was followed, but the day before the panuel was
liberated by the withdrawal of the warrant.
For, if this had been so stated, and the Court had decided that the
act did not apply, then the pannel would have had an opportunity of
applying directly for the interposition of the Court, instead of being
left to rely on the eflScacy of his letters of intimation.
But has it been established, either by authority or decision, that no
prisoner can avail himself of the act 1701, against whom an indictment
has been raised, and a diet of compearance fiased and called.
It must be admitted that one may have suffered much by confinement,
and repeated charges raised and not followed up ; and that, after an-
other libel has been executed, he may have a great anxiety to have his
trial no longer delayed j and in this case though there was little con-
finement, there had been ample delay as to following up the charge.
Now, I have certainly seen no express dictum either in Baron Hume
or Mr Burnett, that the act does not apply to the precise case of the
pannel, the observation quoted from the former p. 10, Information for
Prosecutor, expressly referring to the other branch of the statute. Mr
Burnett, again, in treating of the prov^gions as to the last forty days,
" p. 379 merely says : ' If no warrant of committment be at all applied
' for, or executed against the accused, or if he be admitted to bail, he
' is not within the case provided for by the act, which is directed
' against wrongous imprisonment, and limits the imprisonment of those
' who are in custody in order to trial.'
But in another passage he expressly states, p. 363, ' That no con-
' tinuation or delay by the Court, any more than that occasioned by
' the prosecutor, can prevent the prisoner from availing himself of the
' benefit of the act.'
There is, moreover, to be found in none of these authors any indica-
tion that any act of oppression arising'out of attempts to evade the ap-
plication of this act, are to be left to the protection of the Court in con-
trolling a prosecutor. On the contrary, as the act was passed, not only
' for preventing wrongous imprisonment, but against undue delays in
' trials^ the language of Baron Hume, as quoted by the pannel, is
entitled to the greatest attention, and the propriety of ' rejecting such
AND CIECUIT COURTS OF JLTSTICIARY. 385
The two objects contemplated in the act could not be No. 67.
otherwise carried out ; for if the party who used his law- Baifour.
ful privilege of liberation on bail, was deprived of all High Court.
privilege under the act 1701, he was left to the mere or- i85o. '
Culpable
Neglect of
' a construction of it, as leaves everything almost as indefinite and as Duty.
' liahle to abuse as before^ and nothing can more strongly illustrate this,
than the case put by the pannel, as following from the prosecutor's
argument, that such only must be left to the Court, the discretion of a
prosecutor, or the control of public opinion.
If there is no authority, then, for denying the pannel' g right to let-
ters of intimation, has there been any decision in practice produced
agaiust it ?
I cannot hold the case, of Campbell, as noticed in the note at p.'IiO
of Baron Hume, as a decisive authority; for the reasons stated by the
pannel ; it is not relied on by the prosecutor.
That note states, that after the case had been certified from the Cir-
cuit, he executed letters of intimation, and then-applied hy petition for
liberation ; tha.t fortg days had elapsed from, his nerving his letters of
intimation. This was refused, and justly, as incompetent, as not
sanctioned by the statute at all.
But the case of Dundas, as detailed by the pannel in his Information, •
appears to me to be entitled to more regard than the prosecutor bestows
on it.
Whatever may have led to that prosecution, the time when it de-
pended, and the rank of the accused, independently of the nature of the
offence, must have secured it attention.
We see then \na petition (after indictment raised and diei called, when
Mr Dundas was a prisoner), and warrant for the intimation granted,
acted on by the prosecutor, and at length the charge given up, for the
reasons assigned.
But considering this was only eleven years after the passing of the
act, it is inconceivable that, if it had been supposed to be inapplicable
to Mr Dundas's situation, the objection would not have been stated,
either by prosecutor or the Court. On the contrary, its being acted
on, while the nature of the enactments must have been fresh in recol-
lection, and so well understood, is a strong authority for the pannel.
Again, the case of Welsh, which is founded on as in other matters
settling so many important points by Baron Hume, originally arose by
intimation being made after an indictment had been raised.
The same course here, of serving a new indictment, might have been
followed, after the intimation on the 13th July; if prosecutor chose.
The case of O'Neil seems also a case distinctly applicable to the
point, as shewing not only the practice, but the application of the statute
to it.
386 CASES BEFORE THE HIGH COURT
Dav^d' ^''"^'"y course of prescription in criminal cases of twenty
Balfour, years, and thus, that which is intended as a relief, was
High Court. Converted into a gross hardship, by allowing an indefinite
1850. " postponement of trial.
Culpable — —
Duty. And certainly, to such of us as are familiar with the case of Edgar,
the course there followed, with the deliverance of the whole Court in
granting the letters of initmation under the circumstances stated
(though no discussion appears on the record), must be held as a pro-
ceeding which must have attracted notice by all concerned.
These cases are suiEcient, in my mind, to establish the course of
practice, and to shew that the pannel was not going out of the statute,
when he prayed for and obtained the letters of intimation in this case.
Had the prosecutor chosen, it might have been perfectly competent
to serve a new libel after this intimation, or he might, as in Dundas'a
case, have availed himself of the eighty-one, and moved the Court to
hold the diet as fixed ; but after either course of procedure the act
must have its operation, andon the whole, as I see no repugnance to
the statutory enactments, and no undue hardship imposed on the prose-'
cutor by giving effect to them, while the letters of intimation afford
the pannel protection, loth against wrongous imprisonment and
undue delay in trial, I am of opinion, that we cannot, on a fair con-
struction of the statute, deny the pannel the benefit prayed for in his
petition.
Lord Gillies. — Every case on this act requires attention ; but from
the first, I have never entertained a doubt, and as I entirely concur
with the opinion that has been delivered by the Chair, and for which
the public is indebted, I shall add nothing.
Lord Meadowbank. — This is certainly a most important question j
for if the interpretation put on the act is well founded, there would be
an end of .the liberty of the subject, founded on this most important
and deliberately considered act of Parliament. If the mere serving an
indictment deprives a party of its benefit, the safety of the public is at
an end. I equally think that the second construction is untenable. I
am in the same situation as Lord Gillies, in having never had a doubt
upon the question. The rule of construction laid down by the pannel
is just to advance the remedy, and abate the evil ; and certainly, if any
doubt arises, it must be given in favour of the subject, and against the
Crown, and therefore, if the case is doubtful, as the prosecutor seems
to feel, there is an end of the question. I don't add to what has been
stated. But how is a fair interpretation of the 130 years custom to be
arrived at, but by the opinion and practice of lawyers : The point uow
raised would render the act a dead letter.
The case of Dundas expressly refers to a depending process, and on
hearing that, the whole Court grant the warrant for intimation, ', and
AND CIRCUIT COURTS OF JUSTICIARY. 387
Solicitor-Geneeal and Young. — Tlie facts, as stated ^o.^^].
for the pannel, were admitted, and the question was, b^i^"'^-
whether the accused would require, as matter of form, "j^'j^^g^'*"
i8sn.
Culpable
' with certification as contained in the said act.' Then came the case jjegject of
of Edgar. In it nothing was omitted on the part of the prisoner, and as Duty,
to the prosecutor, I can say, that I was called on and stated the diffi-
culty, but did not agree in it, and Court causa cognitur decided for
the pannel.
As in the case of Dundas, and no doubt has been stated down tjj^.
present hour.
As to the second question, I trust there can be no doubt among us,
that the liberation in question can't avail the prosecutor. The state-
ment gives a jus qucesitum to a prisoner to insist on all that the act
confers, and he can't be affected by the acts of his adversary. I hold
this to be by far the most inportant question that has occurred since
the passing of this act.
LoKD Mackenzie. — As I concur in the opinion given by the Chair, I
need say little. I can't say I never felt difficulties : I did feel them ori-
ginally, though I thought the statute would be defective. But I am now
able to concur in what was stated by the Chair, as to the liberal interpre -
tation of the statute, and that a doubt, if it arises, is always to be in-
terpreted in favour of the pannel. I must decline concurrring on this,
as the act contains most important penalties against Magistrates, and
I can't say that such an act should receive every liberal interpretation.
Lord Moncrbiff. — As I concur in the opinions given, I shan't detail
mine at very great length. I have always understood this act was look-
ed at as the most important act for the liberties of the people, and I do
hold we are bound to give it the most liberal construction, in advancing
the remedies and averting the evils that were in view. I think the pro-
secutor's argument goes too much on implication in construing the act,
in going on the case of persons all along in custody, and that the act
does not apply to prevent undue delays of trial, see p. 5 of Information.
This would destroy one of the main provisions in the act.
The first point is, the endeavour to shew that when a man is under
indictment and a diet fixed, he is not within the act. Now the
cases so fairly stated by the Chair, shew clearly the pannel was in
custody ' in order to trial.' Now, does not the act say any ' prisoner
' for custody in order to trial.' He then applied for letters of inti-
mation, and he got them, and their having been served, is his intima-
tion to go for nothing because an indictment had been served ? This
would extinguish the act entirely. Is there a word in the act that
says so? He is entitled to have a diet fixed, and trial concluded
in forty days, and more, to enjoy the consequences.
I take it we should hold that diet was fixed by the adjournment
to the 1st of August, but if not fixed then, no diet was fixed at all.
388 CASES BEFORE THE HIGH COURT
No. 67. criminal letters after sixty days from the date of letters
Balfour, of Intimation, and whether liberation on bail, on the
High Court, pannel's request, stopped the running of the letters. The
] 8S0. '
Culpable
Neglect of within the 60 days, and I can discover no doubt. But if any existed,
" y* the cases would remove it.
As to Duudas's case must we look to the whole procedure in causa.
Had the prosecutor wanted pannel to escape, he would not have taken
this course against the principles of his own act. After notice he pre-
ceded under the act. I can attach no notice to any private history.
This is evidence of practice eleven years after the act.
In the case of Udffar, the point was agitated, and was in the view of
the Court. Other cases make the practice, and the negative evidence
is important.
As to the second point, all the Court are clear ; in the pannel's case,
a distinction is made as to one in custody, and on bail. I wish to re-
serve my opinion on this, as Dundas was on bail. [Reads.] If on
bail, he is in leffal custody. I reserve my opinion and also as to the
new criminal letters, in regard to what is stated by Baron Hume but it
is not necessary in the present case.
Lord Medwyn.— Concurred in the opinion given, as to propriety
of course here taken, in having this question publicly decided. I wish
it had been so before, as I regret unfeignedly to differ from the opinions
given on one point. I could have wished my doubts had been removed,
rather than rivetted. I should have wished to have withdrawn, but
having formed my opinion I must deliver it.
Though as warm a friend of freedom as the rest of the Court, I
have deliberately cousidered, and must give my opinion.
1. Can a prisoner, who has been indicted, serve intimation ?
2. If in custody, can bis liberation alter his rights ? '
On the second, if a prisoner in custody for trial, and having intimated,
he can't be deprived of his benefit by the act of the prosecutor. I think
the act is entitled to liberal construction, and can't be defeated by any
act of the prosecutor in following out the statute. I don't differ on
this point.
But, on ths first point, I unfortunately differ, when the diet of trial
has been fixed by a libel. I agree that the act originally contemplates
a case of one in prison, and also provides against undue delays of trial.
I shan't stop to analyze the act. The intimation is to fix a diet,
plainly] meaning, that none had been already fixed, as the fixing it
would be nugatory, as being previously done. This also appears from
subsequent clause, ' if no process he raised and executed^ shewing that
the thing was to be done after intimation. If I thought that this would
make the statute a dead letter, I would stretch the act. But I think
AND CIRCUIT COURTS OF JUSTICIARY. 389
provisions of "the act l-equire careful attention. The first ^°-9^-
provision relating to the first imprisonment, the second Balfour.
to the liberation on bail, the third to the forcing on of High Court,
the trial. leso.
Culpable
Neglect of
there was, ^t the date of the act, and is now, a remedy for the evils Duty.
represented.
I think it would be to construe the act against its fairness, if I
applied it to these evils. I don't think the object of the act was what
is supposed. The evils were not undue delays in all trials, but only
when parties were in prison, as to an indictment raised, and diet fixed
for six months after. The act would not remedy this, but the Court
will supply the remedy against oppression at common law. I know
of no such instance. There are many cases of persons imprisoned, and
not brought to trial. These cases are noticed by Baron Hume.
No trace of such complaints among regulations before 1672 as short
iiiduciw was the evil complained of. In July 1672, found the regula-
tion of the year before applying.
In February 1664, and Gordon 1682, libels were executed on bare
fifteen days, and letters of exculpation applied for, the Court granted
delay till the latter were ready, and therefore no need existed to pro-
vide a remedy for such an evil as this, as it was in power of Court to
provide for it.
If no need for providing against long induaim, was there any «eed
to remedy tBe present supposed evil ?
The Court, and not the prosecutor^ continues the diet, and on good
cause would refuse it.
I refer to a case almost immediately after act 1701, viz., on 15th
June 1703, case of Purdie, requesting Court to prefix a short day for
the diet. The Court appointed the 28th instant for the trial, with
certification.
The pannel was served with indictment, and he did not apply under
the act, and prayed for a shorter diet than the act required. The
Court gave the remedy.
It is said prosecutor may change his libel, but still the prisoner has
his remedy, as Court will refuse to recommit, or insist on that going on.
It is said this applies to every prisoner without exception; but look-
ing at rest of the clause, I must see what is done to have a diet fixed
for his irial. The letters' for intimation should have been to go on with
the trial begun, as the Court had the power, as in Purdie's case. It ia
not discretionary for the Court to do justice, the administration must
be corrupt, or public feeling extinct. The Court can prevent all abuse
of its forms.
As to case of Dundas, I wish the point had been decided in it, or any
subsequent case. But I can't discover any decision there. Warrant
390 CASES BEFORE THE HIGH COURT
No. 67. The distinction between prisoners imprisoned and
Balfour, those liberated on bail, appeared very clearly in the pre-
High Court amble of the enactment relied on, which was, * And to
mo. ' ' the effect that persons who are, or shall be, imprisoned
Culpable * or in custody, in order to trial, may not be longer de-
DuV.°'° ' layed and detained, her Majesty, with advice and con-
' sent aforesaid, statutes and ordains that all crimes not
' inferring capital punishment shall be bailable.'
The third class of persons provided for by the statute,
applied to cases where the parties were not entitled to,
or did not find bail (Hume, vol. ii. p. 98), and proceeded
on this narrative, * And her Majesty, with advice and
' consent foresaid, further statutes and ordains, that upon
' application of any prisoner in custody, in order to trial,
of intimation was granted, but no objection made (as in this case by a
single judge) ; whenever such application is made it will be granted,
and prosecutor will either attend to it, or disregard it if not under the
act, as in Cameron and SpittaVs cases. I think this was all that was
done in case of Dundas, though indicating a belief that act applied. I
am not surprised the prosecutor tried to get quit of the prosecution, as
he never raised criminal letters against him ; the motion to desert diet
came from the prosecutor.
It is said Burnett gives no intimation, but this is a mistake.
The case is decided there, that diet must be fixed within the 60
days, and contrary is now settled. This shews the little effect due
to Dundas's case.
As to recent cases, don't think they settle the point. As to private
arrangements I know nothing.
This is the first time the question has been tried, and I am glad it
has been settled.
No continuation of the Court will deprive the party of the benefit
of the act, as found in case certified by Lord Meadowbank from Perth.
I think the diet of 1st August was notj^ssed under the act, by process
raised under it. I can't hold it an act by prosecutor, but of the Court.
Lord Gillies. — A person in situation of this pannel is within the
express words of the statute.
' Find that the petitioner being in custody, in order to trial at the
' date of raising and executing the letters of intimation, was entitled
' to the benefit of the said act j and in respect the Public Prosecutor
' has failed to bring the petitioner's trial to a final conclusion, within
' the time limited by the statute, desert the diet simpliciter and
* dismiss the indictment and pannel from the bar.'
AND CIRCUIT COURTS OF JUSTICIARY. 391
• whether for capital or bailable crimes,' &c. This shews No. er.
David
that the enactment was intended to apply to cases where Baitour.
the party was suffering incarceration solely (Burnett, HighCourt.
p. 354). The case of Dundas decided nothing, as all was isso. '
of consent in that case, and there was no decision in the cuipabie
case of Dick. There was a material distinction between nu1;y.°
this case and that of Macdonald. In that case the pan-
nel was not entitled to be liberated on bail. On the
contrary, he was anxious to force on his trial, a privilege
of which he could not be deprived, by means of the pro-
secutor withdrawing the warrant of incarceration or im-
prisonment. In this case, the pannel had sought tjj be
liberated the next day, after serving his letters of inti-
mation, and could not complain of any consequences re-
sulting from his own act.
Farther, the certifications mentioned in the statute
were inapplicable to cases where the party was libe-
rated on bail. They were, first, that in case of failure,
• the prisoner shall be discharged and set at liberty with-
• out delay.'
Second, in case of delay, proceeding on the prisoner's
request, the authorities ' shall then be obliged to deliver
' their prisoner to an eflScient guard, to be provided by
' the Judge, her Majesty's Advocate, or Procurator-fiscal,
' that the prisoner may be sisted before the judge com-
' petent,' &c. ; and, with regard to criminal letters, the
commencement of the provision relating thereto was,
• and the prisoner, immediately liberated from his im-
' prisonment for that crime and offence,' &c.
All this shewed that the act was intended to apply to
cases where the party was imprisoned during the whole
time. In the present instance, the pannel was not and
could not be apprehended on the desertion of the diet of
the 1 5th of March, because bail had been accepted for
his appearance within six months, and the certifications
of the act were therefore inapplicable to the case.
It was not contended that a pannel was entitled to
2 c
392 CASES BEFORE THE HIGH COURT
No. 67. the benefit of the act unless he was imprisoned at the
David « . . , ,
Balfour, date of presenting his letters of intimation, and that ad-
HighCourt. mission necessarily implied that liberation on bail, on his
July 20. J f
1850. own application, would operate as an avoidance of the
Culpable Jettei's of intimation.
Duty." In the course of the discussion, it was intimated by
the Lord Justice-General, Lords Mackenzie and Mon-
creiff, that the decision in the case of Macdonald, was
arrived at in reference to the particular circumstances of
that case, and was not intended to decide any general
construction of the act 1701, with reference to parties
liberated on bail at their own request.
The LoED Justice-Clerk. — We do not, as is observed
by those of your Lordships who took part in the decision '
of the case of Macdonald, require to consider whether that
decision was satisfactory. Here, however, it is quite diffe-
rent. The case under the statute arises purely, apart from
any personal exception against the prosecutor. The pannel
applied for and obtained letters of intimation to prevent
undue delay of trial when suffering imprisonment. Had
he not been in prison at the time, he could not have ob-
tained them. His object is to avoid undue delay of trial,
that is, undue imprisonment before trial. Now, if being
imprisoned, not simply being accused, is the test of the
competency of the application for letters of intimation,'
does it not necessarily follow that, when he avoids the
imprisonment, by means of his application for liberation
on bail, that he thereby avoids the application of the
statute to his case. Further, the whole phraseology of
the statute, particularly with reference to the certifica-
tions, are at variance with the double privilege claimed ;
and on this point I agree in the main with the argu-
ment so ably urged for the Crown. His Lordship then
went Qver the clauses in the act 1701, in order to shew
that imprisonment was the predicament contemplated in
all the clauses.
Lord Mackenzie. — I concur in thinking this case not
ruled by the case of Macdonald.
AND CIRCUIT COURTS OP JUSTICIARY. 393
Lord Monceeiff. — I also concur in that ; and on the No. er.
. David
more general point, I agree with the Lord Justice-Clerk. Balfour.
Lord Cockbuen. — I concur. I think it impossible to ^igh Court.
■^ July 20.
read the statute otherwise than as applicable solely to i8so.
the case of persons suffering not merely delay, but delay Cuipabie
aggravated by actual imprisonment. Duty,
Lords Wood and Ivory concurred.
The Lord Justice-General. — I am sorry to differ
from the rest of the Court. No doubt the case of Mac-
donald was different ; but I am by no means satisfied that
the principle of interpretation adopted in that case, of
largely and liberally construing the provisions of the sta-
tute in favour of the subject, do not apply. I am at a
loss to see how the taking advantage of one beneficial
enactment, is, by inference (for it is only by inference),
to be construed as a bar to the distinct provisions con-
tained in the other. There is no statutory declaration
that it shall, and I see no reason why it should.
Lord Mackenzie. — I also concur in the doubt ex-
pressed by the Lord Justice-General. I do not exactly
see how it can be successfully contended these privileges
are not cumulative. The privilege of bail is given with-
out any condition attached, and must, I think, be held
as meant to be applicable to persons who were entitled
to sue out letters of intimation.
The following interlocutor was pronounced : —
' In respect the pannel appears to have been liberated
* on bail, on the 26th day of January last, being the day
' after that on which his letters of intimation were exe-
' cuted, and that in consequence of his own application,
' and has ever since remained at liberty, find the pro-
* visions of the act 1701 do not apply to that case;
* therefore. Repel the objection, and on the motion of
' the Public Prosecutor, desert the diet against the
' pannel pro loco et tempore.^
Aug. 29.
1850.
394 CASES BEFORE THE HIGH COURT
Present,
The Lord Justice-Clerit,
Lords Wood and Ivory.
Her Majesty's Advocate. — Sol.-Gen. Moncreiff—Deas 4.D. —
M. Bell A. D.
KGKVSSt
Thomas Henderson, George Langlands, and John Williams —
Craufurd, Logan, and Penney.
Culpable Homicide — Culpable Neglect of Duty, and Loss op
Life. — Held, 1. That these were substaatially one charge, when-
ever an accident happened which occasioned loss of life. 2. Di-
rection to Jury, that when the Crown had proved an accident \j
loss of life in a vessel under the pannels' command, it lay on them
to prove their innocence of all blame.
No. 68. Thomas Henderson, shipmaster, George Langlands
iiendersou mariner, and John Williams, mariner, were charged
^1 !^'witli Culpable Homicide; As also the Culpable and
Aug- 29. ' Reckless Neglect of Duty by any officer or mariner em-
^''^"" ployed or engaged on board of a ship, whereby the shij)
Homicide, IS Wrecked, and any of the lieges are bereaved of life;
*""■ As also, the Culpable and Reckless Neglect of Duty by
any officer or mariner employed or engaged on board of
a ship, whereby any of the lieges who have embarked on
board of said ship are bereaved of life, or have their lives
exposed to imminent danger :
In so FAB AS, the steam-ship Orion, of Glasgow, being engaged in
plying between Liverpool and Glasgow for the purpose of conveying
passengers between these places ; and you the said Thomas Henderson
being the master of the Said steam-shrp, and yon the said George
Langlands being the first mate of the said steam-ship, and you the said
John Williams being the second mate of the said steam-ship; and the said
steam-ship hating left Liverpool on or about the 1 7th day of June
1850, on a voyage to Glasgow, with 200 persons or thereby, or some
other large number of persons- on board, of whom 160 persons, or
thereby, or some other large number, were passengers, and the rest
were the officers and men of the ship's company ; and the said ship
AND CIKCUIT COURTS OF JUSTICIARY. 395
having proceeded on her voyage until she had reached the coast of Scot- No. 68.
land ; and a watch having been set or placed on board the said ship, ijendei'son
for the purpose of navigating her, and looking after her safety, for the and Others,
period from at, or near, midnight of the said 17th day of June, to at. High Court,
or near, 4 o'clock of the morning of the 18th day of June foresaid, or A"8- ^S-
for some other short period of time after midnight foresaid ; and you
the said George Langlands, first mate aforesaid, having been relieved J^"'!'.^?*!®
from attendance upon the deck of the said ship, when the said watch &<..
was set or placed as aforesaid ; and you the said John Williams, second
mate of the said ship, being an ofEoer of the said watch, and for the
period of the said watch, next in authority and charge to you the said
Thomas Henderson ; and it being the duty of both and each, or one
or other of you the said Thomas Henderson, master of the said ship as
aforesaid and charged with the care and navigation of the said ship,
especially during the period of the said watch, and you the said John
Williams, second mate of the said ship as aforesaid, and an officer of
die said watch, and for the period of the said watch, next in authority
and charge to the said Thomas Henderson, to see vigilantly to the
safety and the navigation of the said ship and her passengers and crew,
during the period of the said watch, and in particular to keep or cause
to be kept a good lookout from at or near the bows of the said ship ;
and farther, to steer the said ship, or cause her to be steered, in a safe
and proper course, and according to the rules of good seamanship, and
in particular, with reference to the time of the night, and the great
steam-power and swift movement of the said ship, to steer her, or cause
ber to be steered, at a safe distance from the coast along which she was
proceeding, and neither to cause nor to allow her to be steered in a
reckless or dangerous manner, or nearer to the said coast than such
safe distance foresaid : Yet nevertheless, during the pej-iod of the
watch foresaid, and while ihe said steam-ship was proceeding with
great rapidity on her said voyage along the coast of the shire of Wig-
town, you the said Thomas Henderson and John Williams, did, both
and each or one or other of you, in culpable and reckless neglect of
your duty foresaid, negligently and recklessly, fail and omit to place,
or cause to be placed, any sufficient look-out at or near the bows of
the said ship, or any man stationed there for the purpose of keeping a
good and vigilant look-out a-head, and giving timeful notice of any
obstruction or other source of danger which he might descry : And
farther, during the period of the said watch, and while the said steam-
ship was rapidly proceeding as aforesaid along the coast of the said
shire of Wigtown, you the said Thomas Henderson, in culpable and
reckless neglect of your duty foresaid, did negligently and recklessly
abandon and desert the care and navigation of the said ship for a tim.e,
and did retire to your own room or elsewhere to sleep, and were asleep, or
had lain down to sleep, at or near the time when the said ship struck as
after libelled ; and you the said Thomas Henderson and John Williams
396 CASES BEFORE THE HIGH COURT
No. 98. both and each, or one or other of you, in culpable and reckless neglect of
HendCTson y°^^ ^^^7 foresaid, did negligently and recklessly steer the said ship,
and Others, or cause or allow the said ship to be steered, contrary to the rules of
High Court, good seamanship, and did cause or allow her to deviate from her safe
Aug. 29. and proper course, and to approach too near the coast in a reckless and
! dangerous manner, inconsistent with the safety of the said ship ; and
Culpable through the said culpable negligence and recklessness of both and each,
&c. ' or one or other of you, the said Thomas Henderson and John "Williams,
the said steam-ship struck with great violence upon one or more rocks,
particularly a rock commonly called or known as the Outer "Ward
Rock, and a rock commonly called the Barnoch Rock, or one or other
of them, or upon some other rock or rocks, situated on or near the
coast of the shire of "Wigtown aforesaid, lying northwards from the
outer Light-House on the south pier of the harbour of Port-Patrick,
and within the distance of 650 yards, or thereby, or at some other
short distance fiom the said Light-House, or upon some part of the
said Harbour, or of the ground or shore at or near the said Harbour ;
in consequence of which the said steam-ship had a portion of her hull
driven in, or otherwise sustained great injury in her hull, and rapidly
filled with water, insomuch that, after falling a short way out towards
the sea, or otherwise floating for a short space of time, the said ship
sank, and went to the bottom, having a large number of persons, being
part of the passengers and crew foresaid, on board of her when she
went down ; and while the said ship was rapidly filling with water as
aforesaid, and was in a sinking condition, recourse being instantly
necessary to the boats of the said ship, for saving the lives of as many
of the persons on board the ship as the said boats could contain and
convey to land ; and there being four boats carried by the said ship,
which were intended for the preservation of the lives of those on board
the ship, in event of shipwreck or other sudden emergency ; and it
being the duty of all and each, or one or more of you, the said Thomas
Henderson, master of the said ship as aforesaid, and you the said
George Langlands, first mate of the said ship, and you the said John
"Williams, second mate of the said ship and an oificer of the watch as
aforesaid, to see that all and each of the said four boats were in a state
of complete efficiency and equipment, so as to be ready for instant use
if any emergency were to require them ; and to see that all and each
of the said four boats were fully and properly equipped and fitte J for
being immediately propelled and guided, with due dispatch through
the water, as soon as they should respectively be lowered or set afloat
in the sea, and for floating safely and securely when so lowered and
set afloat in the sea, and for receiving and carrying to shore the full
numbers of passengers which they were respectively capable of receiv-
ing and carrying ; and to see that the tackle or apparatus used at lower-
ing or setting afloat in the sea the said boats, was in good order and
fit. for immediate and efi^ective working; and to see that all and each
of the said four boats were so stowed or placed, in or about the said
AND CIRCUIT COURTS OF JUSTICIARY. 397
ship, and were in such state and condition, as to admit of their being No. 68.
securely lowered or set afloat in the sea, alongside of the said ship, with „^ Xr-rai
the utmost expedition, and in complete readiness to receive their full and Otliers.
respective numbers of passengers foresaid: Yet nevertheless, in High Court,
culpable aud reckless neglect of your said duty, you the said Thomas Aug. 29.
Henderson, George Langlands, and John Williams, did, all and each.
or one or more of you, negligently and recklessly fail or omit to duly y ^^ ■?
stow, or cause to be duly stowed, inside of the said boats, or ^ome of &c.
them, a sufficient supply of oars and other apparatus requisite for row-
ing and steering the said boats, so that the said boats, or some of them,
were not fully or properly equipped and fitted for being immediately
propelled and guided with due dispatch through the water ; and the
said boats, or some of them, did not proceed with passengers from the
said sinking ship, to the shore, as often, before the ship sank as afore-
said, as they would have done if fully and properly equipped and fitted
as aforesaid ; and you the said Thomas Henderson, George Langlands,
and -John Williams, did, all aud each, or one or more of you, negligently
and recklessly cause or allow a hole, commonly called the plug-hole, to
remain open or unplugged in the bottom of all and each, or one or
more of the said boats, respectively, and the plug for each respective
plug-hole to be neither in the said plug-hole nor fastened beside it, so
that the said boats, or some of them, being lowered or set afloat in the
sea after the said ship struck as aforesaid, began instantly to fill with
water entering through the said plug-hole ; and, in spite of every exer-
tion to prevent it, admitted much water through the said plug-hole,
tending to sink the said boats, and also unfitting them for carrying
their full complement of passengers, insomuch that the said boats, or
some of them, did not carry their full complement of passengers from
the said sinking ship to the shore ; and by both and each, or one or
other of the said acts of culpable and reckless neglect of duty, with re-
ference to the boats aforesaid, the lives of the persons on board the said
ship, or some of them, resorting to the said boats as a means of safety,
were exposed to imminent danger, in respect that the preservation of
the lives of the said last-mentioned persons, materially depended on the
said boats being fully and properly equipped and fitted for being im-
mediately propelled and guided, with due despatch, through the water,
and for carrying their full complement of passengers when proceeding
from the said ship to the shore ; and various persons, the particular
individuals being to the prosecutor unknown, but their names and
designations being contained among the names and designations herein-
after particularly set forth, or being to the prosecutor unknown, and
the said last mentioned persons being part of the passengers and crew
foresaid of the said ship, were left in the said ship, when she sank and
went to the bottom as aforesaid, and were then drowned as after libelled,
who would have been conveyed to shore in the said boats if the acta of
culpable and reckless neglect of duty above libelled, with reference to
the said boats, had not, both and each, or one or other of them, been
398 CASES BEFORE THE HIGH COUET
No. 68. commited as above libelled ; and farther, in culpable an4 reckless ne-
ulnd^son sleet of your duty foresaid, you the said Thomas Henderson, George
and"othCTs. Laflglanda, and John Williams did, all and each, or one or more of you,
Hii^hCoui-t. negligently and recklessly, cause or allow the tackle or apparatus, used
Ausj. 29. at lowering or setting afloat in the sea the said four boats, or some of
— ^-^ — them, to get out of order, or to be otherwise unfit for immediate and
Culpable effective working ; and you did, all and each, or one or more of you,
&c. ' negligently and recklessly cause or allow, both and each, or one or
other of the two largest boats of the said ship, commonly called the
life-boats, to be so stowed or placed in or about the said ship, or to be in
such state and condition, as not to admit of their being securely, and with
due expedition, lowered or set afloat in the sea, alongside of the said
ship, in complete readiness to receive passengers, you having, all and
each, or one of more of you, negligently and recklessly caused or allowed
both and each, or one or other of the said life-boats to be fixed in their
respective places by fastenings or supports, or to be attached to the ship
by other apparatus, not susceptible of being loosed or disengaged, at
least with due despatch, and to be cohered with canvass or other covers,
so fastened or attached to the said boats, that they were not susceptible
of being removed with due despatch, and that it cost much labour and
exertion on the part of the passengers and crew, or some of them, as
well as loss of time, while the ship was fast sinking, to cut, or tear, or
otherwise loosen or disengage or remove the said fastenings or supports,
or other apparatus, or the said covers, or part of them, from the said
boats, and so to prepare the said boats, or one or other of them, for
being lowered or set afloat in the sea as aforesaid ; and undue delay
and difiiculty were thus occasioned in lowering or setting afloat in the
sea the said boats, particularly the said life-boats, or one or other of
them ; and an increased rush of passengers was thereby caused to the
two other and smaller boats of the ship, commonly called the quarter-
boats, or to one or other of them, by which acta of culpable and reck-
less neglect of duty, or part thereof, above libelled relative to the tackle
or apparatus used at lowering or setting afloat in the sea the said four
boats, or some of them, and relative to two of the said four boats, com-
monly called the life-boats, or one or other of them, the lives of the
persons on board the said ship, or some of them, resorting to the said
boats as a means of safety, were exposed to imminent danger, in respect
that the preservation of the lives of the said persons materially depended
on the said boats being securely lowered or set afloat in the sea with
the utmost expedition, and in complete readiness to receive their full
respective numbers of passengers ; and one of the said quarter-boats
when lowered or set afloat, or when being lowered or set afloat, in the
sea, was capsized or swamped in consequence of the tackle or appara-
tus used for lowering or setting afloat the said boat as aforesaid being
out of order, or unfit for immediate and effective working, or in coYi-
Be(iuence of the increased rush of passengers foresaid ; and one of the
AND CIRCUIT COURTS OF JUSTICIARY. 399
said life-boats was never got effectually or completely disengaged from ^^' ""•
the said sliip until at or near the time when the ship went down as Henderson,
above libelled, when the said life-boat was turned over by the said ship ^"^ Others,
in sinking, or was otherwise capsized or swamped, in consequence. High Court,
wholly or partly, of her not having previously and timefully been "^Jj, *
effectually or completely disengaged from the said ship, or loweied or — ;
set afloat free in the sea, because of the undue delay and difficulty yofnjcide
occasioned as above libelled j and by the capsizing or swamping fore- &c.
said of the said quarter-boat and life-boat respectively, various persons,
the particular individuals being to the prosecutor unknown, but their
names and designations being contained among the names and designa-
tions hereinafter particularly set forth, or being to the prosecutor un-
known, and the said last-mentioned persons being part of the passengers
and crew foresaid, who bad got within the said quarter-boat and within
the said life-boat respectively,in order to save their lives by means of each
said respective boat, and whose lives could have been saved if the said
boats, within which the said persons respectively were, had not been
capsized or swamped, were thrown into the water and were drowned :
And when the said ship sank and went to the bottom as aforesaid,
various persons then on board of the said ship, the particular indi-
viduals being to the prosecutor unknown, but their names and de-
signations being contained among the names and designations here-
inafter particularly set forth, or being to the prosecutor unknown,
and the said last -mentioned persons being part of the passengers and
crew foresaid of the said ship, were drowned : By all which, or part
thereof, a number of men, women, and children, amounting to forty-
seven persons, or thereby, or to some other large number of persons,
the full number being to the prosecutor unknown, but being part of the
passengers and crew foresaid of the said ship, were drowned ; in par-
ticular, Alexander M'Neill of Colonsay, in the shire of Argyll ; Ann
Carstairs or M'Neill, wife of the said Alexander M'Neill ; Cecil Ann
M'Neill, and Hester Mary M'Neill, daughters of the said Alexander
M'Neill ; John Burns, M. D., lately residing in or near Blytheswood
Square, in or near Glasgow; Eliza Morris, niece of the said John
Burns ; Elizabeth Laskey or Splatt, wife of John Splatt, now or lately
. farmer, residing at Moor Farm, Souton, near Exeter; Mary Ann Splatt,
and Anna Splatt, daughters of the said John Splatt ; John Roby, lately
residing at or near Great Malvern, Worcestershire ; William March-
bank, commercial traveller for the firm of John Clapperton & Coy.j
of Glasgow, lately residing at or near Garnet Hill, Glasgow ; James
Houston and Mary Houston, children of James Houston, now or lately
jshipraaster, and now or lately residing in or near Port Glasgow; Har-
riet M'Kenzie Pugbe, daughter of the Eev. Kenneth M'Kenzie Pughe,
Episcopalian minister, Paisley; John Hume, wool-merchant, lately
residing in or near Bedford Street, Laurieston, in or near Glasgow ;
James Dunn, apprentice on board of the said steam-ship Orion ; Alex-
ander Graham, steward on board of the said steam ship ; Andrew
400 CASES BEFORE THE HIGH COURT
No. 68. Walker, carpenter on board of the said steam-ship ; Robert Haslem,
Th .maa jgajgr ^t or near Bolton -le-moor : Mary Ann Adaiuson or Fraser, of
Hcnucrson ■> y '
and Others' New York, and her son David William Eraser ; Thomas Jago, mer-
Hi'h Court '^^''^^ or agent, lately residing in Brounlow Street, Liverpool ; John
Auff. 29. Pearce, merchant or shipowner of Mevagissey, in the county of Corn-
wall ; Thomas Bancroft Bennet, of the city of Chester ; Francis
Culpable M'Murrich, coppersmith, Liverpool ; William Letham, manufacturer,
&c. ' of Glllstocks, Kay Street, Little Bolton ; James Martin, son of Thomas
Martin, of the firm of M.artin, Burns, & Coy., Liverpool ; Jessie
Underwood or Cassin, wife of John Cassin, blacksmith, Walton, near
Liverpool, and Robert Cassin, son of the said John Cassin, James
Scott, merchant, Montreal, North America, Agnes Gladstone, daughter
of Lawrence Gladstone, now or lately residing at Clifton Park, near
Birkenhead, Cheshire, England, besides other persons who were on
board the said steam-ship, but whose names are to the prosecutor un-
known, or some of the said persons, were drowned, and were culpably
bereaved of life in manner above libelled : And you the said Thomas
Henderson and John Williams are, both and each, or one or other of
you, guilty of the culpable bereavement of the lives of all and each or
one or more of the said persons drowned in manner above libelled ; and
you the said George Langlands are guilty of the culpable bereavement
of the lives of such of the said persons as were drowned in manner
above libelled, when left in the sinking ship in consequence of the said
boats, or some of them, not having proceeded with passengers from the
said ship to the shore as often, before the said ship sank as aforesaid,
as they would have done, if fully and properly equipped and fitted as
above libelled, or in consequence of the said boats, or some of them,
being unfitted to carry, and not having carried, their full complement
of passengers to the shore as above libelled, or when thrown into the
water by the capsizing or swamping of both and each or one or other
of the two boats, the said quarter-boat and life-boat respectively, cap-
sized or swamped in manner above libelled.
The pannels pled not guilty.
Defences were given in for Captain Henderson, in
which he stated, that ' uo man can lament more than he
' does tlie loss of the ship which he commanded, and of
• the lives of the passengers under his care. But he de-
' nies that the accident was caused by any neglect, reck-
• lessness, or culpability on his part ; and while he can-
' not profess to explain the causes which may have led
' to the result, he alleges that when, for a short period,
' and according to known practice, he quitted the deck
' to take a, little rest, he left the Orion in charge of a
\>,VM*.
PLAN OF
PORTPATRICK HARBOUR
OUTER WARD ROCK Ac.
Scale.
g 3 « s e r ' 800 T
PORTPATRICK
SPORT Mi
PORT£NCOfiKCHm€ BAT
SKETCH OF THE COAST
FROM MULL OF CALLOWAY fu*
TO BLACKHEAD.
MULL OF CALLOWAY.
J &eUa^ LUhrSdtr!:
AND CIRCUIT COURTS OF JUSTICIARY. 401
• competent oflScer, and on a course which would have No. 68.
r ' Thomas
' carried her safely on her voyage. Her wreck after that Henderson,
• time must have been owing to causes which he could — "
' not have anticipated nor controlled. It is not truly Aug. 29.
' charged against the pannel that he was neglectful of 1-1_
' duty in regard to the equipments of the vessel or the Homcide,
• boats.' *'''•
Defences were also lodged for Williams, the mate,
stating, that, ' after the time when the conduct of the
' vessel was given him in charge, when alone, he sub-
' mits, that any responsibility in this matter can be held
' to attach to him, he caused the vessel to be steered in
' a proper course, according to the best of his judgment
' and discretion, and the information afforded by the
• steering compass of the vessel, which, however, he has
' reason to believe, was, or had become, inaccurate ; and,
' in the circumstances of the case, no culpability, on his
' part, was the cause of the melancholy accident which
• took place. The pannel is not responsible for the con-
' dition of the boats ; but these, he believes, were in a
' perfectly sufficient state.'
EVIDENCE FOR THE PROSECDTION.
C. GiPP EoBiNSON, R.N., — I am a captain in the navy, and have
been employed for a considerable number of years making a hydro-
graphic survey for the Admiralty, including the coast of Wigtonshire.
The chart produced, which is on a scale of three inches to the mile, is
an accurate delineation of the coast of Blackhead, near the Mull of
Galloway. Blackhead is a mile and a-half to the north of Portpatrick,
and Cromack Point is a distance of 12 miles. If a straight line be
drawn between these two headlands, the land falls in considerably to
the east, and makes a bay, on part of which Portpatrick is situated.
1 have noted the course of the tides, and indicated them on the chart,
with the velocity at flood. I am familiar with that coast, and have
marked the course of a steamer to follow between Cromack Point and
Blackhead, by a dotted line, which at Cromack Point is three-fourths
of a mile, and at Blackhead is one mile and a third off Portpatrick. I
also prepared a chart of the harbour of Portpatrick, on a scale of one
inch to a hundred feet, on which is noted the Barnoch Bock. There
are three piers at the harbour, one called the South Pier, on which is
a light-house unfiniished and not lighted. There is a harbour light on
402 CASES BEFORE THE HIGH COURT
No. 68. the South Pier, next the shore, 429 feet from outer end. The height
HenSson, "^ ^^^ harhour light is 38 feet above high water. There is a parapet
and Others! wall around the South Pier, 26 feet high. I have marked the houses
High Court, of Several parties near the end of the pier. The North Pier does not
Aug. 29. project so far as the South Pier. The Ward Bay lies to the north of
'- — the North Pier, and I had my attention particularly drawn to the
HoSde ^°^^^ ^^'■'^ ^'"'^- ^* '^ ^ distance of 1,048 feet from the end of the
&c. ' South Pier. It is always covered at low water. It is distant from
the shore 150 feet, and I have marked 5 feet 9 inches as the height of
the water on it at quarter-flood. These rocks are well-known. I ex-
amined it on the 1 2th and 13th July. I had an opportunity of looking
at it when the tide was extremely low, and observed several fragments
of it scattered about. A little to the north is a rock called the Barnoch
Rock. The Barnoch Rock is 30 feet from the Barnoch Island, and
1,S50 feet from the outer end of the South Pier. The rock is dry
when the tide is half-full, 8 feet being visible at low water, and 4 feet
3 inches at first quarter-flood. "Two small heads project into the sea.
There is deep water close up to the South Pier head and to the Outer .
Ward Rock and the Barnoch Rock. I have noted the position of the
Wreck of the ship. The port paddle of the ship is 475 feet from the
Outer Ward Rock. She is lying in 36 feet at the stern, and 30 at
the bow. If the Orion passed the pier-bead at her own length from it,
and going N. \ W., she would have been carried straight on the Outer
Ward Rock. If she was twice her own length and on the same course,
it would have taken her exactly on the Barnoch Rock. On this other
chart there is a point called Castle Point, on which is situated Duns-
key, in ruins. The distance of Castle Point from the South Pier is 2375
feet, and of Marroch Point 4055 feet. In flood-tide the course of the
tide is very nearly southerly.
Cross-examined hy Mr Penney — The course of the tide is what is
denominated close on shore. When the stream of the tide is flowing
south, it will more or less interfere with the course of a vessel going
north. A vessel going from Cromack Point to Blackhead has a safe
course laid down on the dotted line ; but I don't mean to say that is
the only safe course : it might go inside by daylight, or on a fine night.
Portpatrick, on this chart, lies somewhat to the east and north. The
land lies in betwixt these points considerably, but where it does there
are soundings. Supposing the Orion twice her length ofi' the pier, the
course would carry her on the Barnoch Rock, and once her length on
the Outer Ward Rock ; but supposing she was half a point farther
west, she would clear the rock. 'I am not aware of the course the
Liverpool steamers geneg^lly take.
By Mr Craufdrd. — There is deep water within the dotted line.
Suppose a mile or half a mile from Cromack Point, within the line, a
course of N. \ W., cleared her of everything ; and so would a course
of N. \ W., at that distance ofl'. A direct north course at half a mile
AND CIRCUIT C0URT3-0F JUSTICIARY: 403
from Cromack Point, would clear her of Portpatrick pier, taking mag- ^°- ^^■
uetic north. A course from Portpatrick pier of N. by W. ^ W., would Henderson,
just clear her of the Ward Rock. Supposing a vessel half a mile west and Others.
of Cromack Point, a course direct north would clear her of the Barnoch High Court.
Rock. Supposing it to be N. ^ W., it would be a course which would "gin '
not only clear her, but clear her with all safety. ■— — — —
Bff Mr Bell. — I am still of opinion the course laid down on the Homicide
chart is a safe and proper course for a steamer at night, with a due re- Re-
gard to the safety of the lives on board. A vessel in a fine night
might go nearer, but I do not think any one should have done so. 2d,
I see a hill called Dunman Head, which is a well-known headland on
the coast. Supposing a vessel passes half a mile free of Cromack
Point, to N. i W., it would take her fully a mile off Portpatrick pier.
By the Lord Justice- Clerk. — If a vessel was half a mile from
Cromack Point, a course direct north would clear her of Portpatrick
pier by two-thirds of a mile, and would clear the Outer Ward Rock.
If the Orion had been its own length off Portpatrick pier, steering
north, it was in a wrong course to avoid the Outer "Ward Rock ; and
if a change to N. ^ W. had been made, it was not sufficient ; N. by W.
would clear the Outer Ward Rock, but not the Barnoch. Steering
north within her own length of Portpatrick pier, it would depend bn
the extent of the change which was made on her course, and the vessel
answering properly, if she cleared it. I do not think that any one
with his eyes open would keep a vessel within its own length of Port-
patrick pier. No course compatible with safety could by possibility
be so near the pier ; and no course consistent with safety could have
allowed the vessel to be so near the coast as where she is now lying.
The harbour light is a very indifferent light, but it is seen about four
miles off in a reasonably fine night, — an ample distance to give warn-
ing if one happen to get too near. The current runs about two knots
an hour. It increases towards Cromack Point, and going north it
decreases. The effect is to sweep a vessel rather off Cromack Point
than otherwise; and as it got nearer to Portpatrick, tends to take her
rather inshore. Of course, it is a well known rule; and a person
acquainted with the currents must make allowance. From the Isle of
Man, you steer for the Mull of Galloway ; and if that light is seen,
that enables you to take a course that will clear you of all these rocks.
John Robertson. — I am manager to the firm of Caird & Co.,
engineers and iron shipbuilders, Greenock. They built the Orion in the
year 1 846-7. She was an iron steam-ship of 805 tons cm. I prepared
a model of the Orion lately, with the staiboard boat swung in the davits.
There were four boats, two of which were life-boats. The latter were
hung behind the paddles. To show their position, I have made a
section model. The vessel was divided into five water-tight com-
partments. The pieces of iron produced are of the same kind used in
the Orion..
404 CASES BEFORE THE HIOH COURT
No. 68. By Mr Logan. — The paddle boats on the model were put there from
Thomas recollection. The section was made from a scale of the breadth of the
Henderson, ^ , , .
and Othprs. boat, which might be mcorrecfc. In regard to the steermg apparatus,
High Court. ''' ^^^ designed as an improvement on the ordinary mode. It was so
Aug. 29. constructed that, after two or three turns were given it, and after the
"'^'*' steersman left, it was less apt to turn than the common wheel. The
Culpable immediate obiect of the invention was to enable the steersman the
Homicide, •'
&c. better to resist the shock of a surge.
By the CoDBT. — In regard to the boats, there was nothing to hinder
their being unhung, when wanted.
John Macdonald, boatbuilder, Greenock. — I made the boats of the
Orion, and I have made a model of them, having got three of them
again in my possession. I measured the life-boat lately, and found it
could hold between seventy and eighty people.
By Mr Logan. — Captain Main commanded the Orion when the
boats Were fitted for iU When Captain Henderson was appointed,
I made an alteration at his request. He put an eye bolt into the keel,
60 as to facilitate the unswinging of her. I hung the Oriental Steam
Company's vessels the same way. In my judgment, I don't think that
life-boats could be better hung than those of the Orion. After the
wreck, I remember the holes of two nails in the lower part of the stem
post near the keel of one of the life-boats. There was attached to them
a cover as a spray cloth, and the stick produced was upon the boat
when brought back to me.
By the Court. — ^Unless something had been put there on purpose,
the boat would not have rested on any part of the ship, notwithstand-
ing the nails.
D. Walker, seaman, Glasgow. — I was employed on board the
Orion when she was lost, eighteen or nineteen months. Captain Hen-
derson had been commander since August. We sailed from Liverpool
on the 17 th June last, between 3 and 4 o'clock. George Williams the
Mersey pilot, navigated the vessel down the Mersey. I came on to
steer iu the course of the night, from 10 to 12. It was a fine night, but
a little cloudy. There was a haze hanging over the land at the Mull
of Galloway. We made the Mull of Galloway a little before 12. We
saw the light through' the fog. I left the helm near Dunman Head,
between the Mull of Galloway and Portpatrlck. We were then close
in shore. I thought we' were unusually near shore. It was George
Langland's watch when I steered. When we are steering we cannot
see in front of the vessel on account of obstructions on deck. There
were on deck at the time C. Leslie, George Williams, James Donald,
John Kerr, and myself, besides Langlands and the captain, Carpenter
and Walker. When I was steering, there were two looks-out on the
paddle bridge, but none at the bows. In steering, we steer by the
compass when hazy, and take our courses from the officer in command.
I was released at ten minutes past 12. Our course then was NN.W„
AND CIRCUIT COURTS OF JUSTICIARY. 405
when we rounded Dunman Head. I can't say how far we were off ^°- ^^-
J/llOlllflB
land. The land had been visible all the way from the Mull of Gallo- Henderson,
way. The next watch is the second mate's watch. I went below and Others.
and fell asleep, when I was wakened by a crash. I ran on deck to see High Court,
what was the matter. I saw a few passengers running about on deck, ia5o.
and that the vessel was going ahead on shore ; she was not fast. I "ci,ipable~
ran down to put on my boots ; came up again, and ran aft to clear Homicide,
away the life-boat. The model gives a pretty good representation of "'
how the life-boat was hung. I then ran to the other life-boat, and
found them taking the cover off. They did not for some time succeed
in lifting off the boat, on account of the stiffness of the tackles, or the
weight of the passengers in the boat ; more from the . latter cause
perhaps. She was got off at last, and lowered into the water. She got
to land with several passengers. I went up the rigging, and was taken
off by one of the boats afterwards. The Orion, I believe, was in Havre
for a month or so during the spring. She had been about a month or
six weeks back on the station, and I had not seen the boats lowered
from the time she came back ; but I think they had got new covers.
The vessel was afloat for about ten minutes after I ran up. The boats
came off from the shore. I don't know what became of the other life-
boat. The carpenter tried to get the groove in which it was fixed
knocked from under the boat. He gave me an axe to cut the outside
part, and I did so.
By Mr Craufurd. — "We were steering NN.W. There was a haze
over the land, but the sea was lying calm enough. I gave the helm to
John Kelly when he came up. I stopped on deck five minutes after
he relieved me. I don't know who went to the look-out on the gang-
way. The bridge across the paddle-boxes is higher than in most
vessels, and we have a clear view over the bows of the ship. I con-
sider it a safe and good look-out. After I saw the larboard life-boat
launched, the ship sunk in about five minutes. Captain Henderson
sent me down on the mast to take charge of one of the fishing-boats, to
take as many passengers as I could, which I did. While I was on the
mast, Captain Henderson was giving directions, such as calling on the
boats to come across to the ship, and pick up the passengers. For
some time they hung about, but at last they did come. Captain Hen-
derson remained clinging to the mast. I went out again, in about an
hour and a half afterwards, when all was over.
£j/ Mr Logan — When I went on deck, I heard Mr Langlands call-
ing on the crew to come up and launch the life-boats. He had seen
them launched, by order of Mr Langlands, for giving exercise. This
exercise took place some time before the wreck. This was all done to
make the blocks and tackle work sweetly. Since coming from Havre,
the life-boats got new covers. After coming on deck, I went from the
larboard to the starboard life-boat. It was difficult to lift on account
of the number of passengers in her. The boat is swung by means of a
406 CASES BEFORE THE HIGH COURT
No. 6!!. davit in which there is a block. The life-boats of the Orion were very
Thomas heavy. The life-boat was supported by three uprights, called ' chocks.'
and Others. I and the others who were attempting to launch the lile-boat pulled at
High Court, tl^e tackle to lift her out of the ' chock,' the groove of which might be
Aug, 29. about an inch deep ; so, if the boat had been empty, a very small pull
^"^°- at the tackle would have got her clear. After getting her clear, and
Culpable gjjg ^3,8 lowered by the tackle, there appeared no defect in the tackle-.
&c. ' Before she was altogether lowered, I left.
By the SoLiciTOK-GBNERAL-^When steering, I took the courses
from Mr Langlands. I saw the captain about 1 1 o'clock, when he
told me to go nothing to the northward, and I steered a quarter point
further west. He looked at the compass to examine the course. We
had not then seen the Mull of Galloway. I understood the order to
be a hint rather to keep to the westward. The captain was on deck
during my watch all the time. There were a large number of passen-
gers. I saw the bows of the starboard quarter boat down in the water,
and the other end hanging by the tackle, and one or two tumbling «ut
of her. While the larboard life-boat was lowered, there were one or
two tumbled out of her. I am quite sure, if there had been nobody in
the boats there would be no difficulty in lowering them.
By the CoTTRT. — I thought we were unusually near the land. After
we made the light, I did not go farther to the west than the course
laid down to me ; it was before that I went a little to the west. If
the course after we made the light had been followed, it would have
carried us clear of where the vessel struck. When I went down, and
gave up the helm to Kelly, I did not notice if the captain was on deck.
The course was changed to run along the coast, after we rounded the
Point, to NN.W. If that course had been followed, it would have
cleared the rocks on which she struck. In that case, we would have
passed the rocks about six or seven miles to seaward. I was steering
N. by W. till I gave up the helm. When I left the watch, I remarked
to George Williams, we were very close on the land. I made no re-
mark to John Williams, and he did not communicate to me. He came
and looked at the compass, when I surrendered to Kelly. I cannot
say how long it was after I went down before the vessel struck I
could see the shore quite clearly when I went up. I did not notice
the houses in Portpatrick. There was no wind ; and the sea was calm.
When I went up the vessel was going a little a-head, and I don't think
she rebounded. She ran past the place she struck. I did not observe
if she shoved off a little more to seaward ; and I cannot say that she
was farther off shore when she went down. But she appeared to run
past what she struck on. I did not feel her strike a second time.
JoEiN Kelly, seaman, Andersion, Glasgow. — Took the helm from
Walker. It was a fine night, very calm; and no fog. The ship was
to the south of Dunman Head. It was ten minutes past 12. We
were close to land. We were particularly close ; I never was so close
AND CIRCUIT COURTS OF JUSTICIARY. 407
before. I have been four years on the station, — twenty months of No. 68.
which were in the Orion, with Captain Main, the former commander, tt''"'^j'"^o„
and Captain Henderson. I cannot say if the captain was on deck. I and Others,
got NN.W. as the course from Walker. The watch was changed ; uieli Court.
Langlands was on deck, but it was what I call the second mate's watch. Aug. 29.
It begins at 12 and lasts four hours. The second mate is an officer of '__
the captain's watch, and remains on deck during that time. When I Culpable
had the helm, the captain, who had come on deck the minute after I ^g_ '
took the helm, came and examined the compasses. He stayed about
five minutes. He gave me no course. The mate gave me none, but
the second mate Williams did, after the captajn went below. He had
changed the course before. He first gave NN.W. ^ W. He told me
to go half a point more inshore not in captain's hearing. That was be-
fore the captain came up, and he changed it again before he came ; he
said, ' Keep her north by west. Jack." That was still more in shore.
He again changed it a third time to N. ^ W., which was a half point
still nearer shore. All that was before the captain came on deck.
The captain came on deck, and said something to the second mate, and
be went forward. I did not see him again before the vessel struck. I
did not hear what was said. When the captain went forward, the
second mate came and told me to go N. ^ W., that is a quarter point still
nearer shore. That was immediately after the captain left him. We
were now pretty well over to the land, and might be about half-way
between Dunraan Head and Portpatriok. The next course I got from
Williams was North, which also took us in shore, and the next was
N. ^ W^ which was rather more out. The last order was N. ^ W.
At that time we might be opposite to Dunskey Castle, and I had not
seen Portpatrick light. After I got the last course, Portpatrick light
was reported by the look-out Wilson. He said ' A light on the star-
board bow.' It struck me it was Portpatrick light. Between Dun-
man Head and this I had seen the land all the way, till the fog came
on. It was sung out from the gangway. After I had seen the light,
there was a light reported off the port-beam. That was from another
vessel passing. After that Wilson came aft and said to the second
mate, ' John, do you see no land there V Williams said ' Yes.' I did
not hear if he said anything else. He gave me no order, in conse-
quence, and I was still steering N. ^ W. The vessel was, by this time,
abreast the high land to the south of Portpatrick. I thinLit was rather
to the southward' of Dunskey. After Wilson reported the land, there
was sung out from the gangway, ' A vessel on the port-bow — no light.'
After I had got the message, I saw the light, but we were very near
abreast of her before I saw it. Before I came in sight of it myself,
there was nothing again sung out from the gangway. The first thing
I heard after seeing the light was, ' Starboard a little — keep her north
by west.' This was from Williams. I had been at this time still
steering N. i W. Immediately after, there was called from amidship,
2d
408 CASES BEFORE THE HIGH COURT
No. 68. ' Hard starboard.' A sudden call as if from a man afraid. ' Land
Henderson ' right ahead' was next called from another voice. At this time the
and Others, second mate gave me the order, ' starboard a little.' He was standing
High Court, near the mizen- rigging. The voice from the midship, I found on re-
•^"S- 29- flection, to he Duncan Campbell's. After ' hard starboard,' the second
mate ran to the after skylight, in the direction of, the captain's cabin.
HOTucide ^""^ *'''^®° ^^^ ^° ™® *° ^^^^ ™® *° P"* ^®' ^^^^ a- starboard. She was
&e. put hard a-starboard. The wheel was about hard over when she struck;
She went over the rock, and there'was a long loud crash. I did not
let go the helm. One of the firemen came up. I asked him what was
the matter. He said the engine-room was filling. I did not hear any
motion of the engine after the crash. I went to the larboard quarter-
boat, and commenced to lower it. Some passengers and firemen got
into the boat before I went to the tackle fall. I got the boat lowered,
and got into it. I could not find any plug in the boat to fill the hole
which allows the water to run out. The water came in. There were
no oars in the boat. When I went into the boat I used a knife to cut
away the piece of cord fastening the cover, and the mate came and
sung out to come round to the starboard quarter as a boat bad capsized.
I sung out for oars, and got them. The boat should have had five, but
I cannot say how many we got. A gentleman stopt the plug-hole
with his handkerchief, and we rowed ashore. The cry was ' There
' were plenty in the boat, and could not take any more in.' There
were from fifteen to twenty ; but, if she had been all right, she might
have held about thirty. There was not much water in her. The pas-
sengers were not very turbulent after the plug was stopt. If we had had
five oars the land would have been made sooner. We put the passen-
gers ashore and went back to the wreck. I searched the boat for the
plug, but could find none. I heard a cry — ' Come under the starboard
' rigging;' but, as I saw boats there, I went into the larboard mizen
rigging, and took all we could. After that we went to the main rig-
ging, and took in some along with the captain and mate j who were
the last to leave. The vessel had now settled down. When we were
abreast Dnnman Head, she might be 200 yards from shore, and about
the same distance when oflf Dunskey. I can't say how close we were
to the pier. The vessel struck about twenty or twenty-five minutes to
two o'clock. We were alongside Portpatrick sooner than our usual
passage. We had had a good run. Our passage might have been
fifteen or sixteen hours to Greenock, enabling us to run the tide. By
that I mean going up to Glasgow with the same tide. If the vessel
had not been wrecked, we would have had plenty of time to run the
tide. We might have been at Greenock about eight o'clock. The
tide would turn about an hour after, but sometimes more. If we are
not there by that time, we might lose the tide. There were two com-
passes— one on the bridge, and one aft. There was always a little
variation between them. They had been in the vessel before I came.
AND CIRCUIT COURTS OP JUSTICIARY. 409
These two compasses remained all the while I was on board. She was No. 68.
at Havre for six weeks, and I believe, there was a third one then put 'l"o™a'*'
on board. I observed there was a greater variation after her return, and Others.
This was well known among the crew, and it was often a subject of uighCoiu't.
conversation. We steered by the one aft. The captain examined the Aug. 29.
1 ft'iO
one on the bridge, and the one aft. The life-boats on board the vessel
were lashed inside, ?iccording to the manner represented by the model. Culpable
We were obliged to unscrew the ring bolt before it could have been &c.
lowered. I never saw a boat so fastened up in any other vessel. It
was not there at all before Captain Henderson took the command of
the vessel. The boats had been only twice lowered during the twenty
months I was there. They might have been put out on the Havre
station, but I can't say. They might have been lowered three or four
months before she went to the Havre station. I can't say when she
came back, but the boats were not lowered after she came back. The
boat had neyer been lowered after that fastening of a new cloth was
put on. I can't say how long it would take to lower the boats in the
ordinary way ; it would have been more than ten minutes at all events.
But if there iiad been no cover, it would have taken ten or fifteen
minutes, with these sort of davits and lockets. I have sailed in other
steamers, and that is the only way I have ever seen it in use. It is
not usual, however, to fasten it up in that way. I knew Dr Burns.
I saw his dead body after the wreck. Mr Langlands, with other two
men, and myself, found the body, and assisted in taking him in. There
was also James Dunn, the apprentice, besides the steward and many
others.
Cross-eaia/mined hy Mr Penney. — I don't know the speed of the
Orion exactly, but it might have been about 12 to 14 knots. The
course I got when I first took the helm from Walker was NN.W.
That was south of Dunman Head. The next course was NW \ W.
Was abreast Dunman Head when we were falling in shore. I got the
course of NW. ^ W. before I had got past Cromack Point. When
opposite Dunman Head, I saw the land clearly. There was no fog on
the water there. When we got from NW. \ W. to N. \ W. we were
then going across the two headlands. The night was clear and calm ;
but when between Dunskey and Portpatrick, the fog came down ; and
when we were abreast, the second mate gave the order to starboard a
little. The fog was just beginning to clear away when we were
abreast Portpatrick. It came down suddenly, and cleared oflF very
suddenly. I have had the helm in that quarter on former occasions ;
and the course of N. | W. was before Portpatrick light was reported,
and that was the point kept. I never was a point east of north during
the whole course.
By the Court. — It was in the second mate's watch.
By Mr Ckaufded. — I have served with Captain Main, also Cap-
tain M'Keilar, but they stopped longer on deck than Captain Hender-
410 CASES BEFORE THE HIGH COURT
No. 68. son. In all these vessels I do not recollect if the second mate kept
HlndCT^n ^^^ second watch. In the Fire King (Captain M'Kellar,) the captain
and Others, took as much to do with the watch as the second mate. In the Fire
High Court. King the captain left the watch sometimes, but I can't say to whom
Aug. 29. he left the command. The rule^ in ships I have been in is, the second
^ • mate took charge of. the captain's watch. It was the look-out of Wil-
Culpable g^^ gjj J Stewart ; but whether they went up I can't say. Wilson was
&(.. ' called River Pilot. He was on the starboard side of her. The cap-
tain's cabin was abaft the gangway,' so as to be quite within call of the
men on the gangway. There are steps from the gangway down. A
man on the gangway could stamp on the roof of it and be heard. We
were as far off the land at Dunskey as at Dunman Head, that is 200
yards. Between the two I had been steering for sometime in a north-
erly course. That brought us nearer the land.
Bi/ Mr Logan. — I have seen the boats twice lowered, but I thought
that was more for cleaning them than for exercise. They were
launched once at Glasgow and once at Liverpool — most of the crew
were there. There were nine seamen and three boys on board. To
launch a boat it- would take more than that number of seamen at both
falls. I have seen the life- boats launched in other steamers, but just
for cleaning. They had covers likewise, as all sea steamers have who
carry their boats on davits. In the Viceroy, there was no cover, but
the keel was turned up. It is a general practice to have the life-boats
covered. The Orion's had covers before Captain Henderson or Mr
Langlands joined her. The keel of the boat rests in a sort of groove
on three ' chops.' These were there when Captain Henderson and
Mr Langlands shipped on board. There were also flat belts on either
side, for steadying ; which were in use before the captain joined.
In other steamers, I have seen similar belts used. The nse of the
spray-cloth was to keep the spray coming in on the passengers through
the space between the boat and the bulwarks. This cloth was tied
with white twine to a small piece of stick that went along the bilge of
the life-boat. Suppose the life-boat were cleared, and in the act of
going down, I can't say whether the boat would carry the cloth down
with her. The davits used in the Orion were similar to those in other
boats. I could not say whether there was anything to prevent the
boats being launched as quick as by any other. When the Orion
came into the hands of Captain Henderson, she was not in the same
good order and cleanliness, and Mr Langlands took every opportunity
in cleaning her up. On the 17th June, before I sailed from Liverpool,
I remember the quarter -boat oars were cleaned, and on the passage I
saw some oars alongside the gangway. After the larboard quarter-
boat was let down, the people on board would not let him go round to
the starboard side, where the other boat had capsized. The iron stay,
which joins the fore davit to the ship, was fastened to the gangway by
a nut or screw.
AND CIRCUIT COURTS OF JUSTICIARY. 411
By the Solicitor-General. — The Orion made three trips a fort- No. 68.
night. Thomas
° Henderson,
EoBBRT Wilson. — I was Clyde pilot of the Orion. I was on the and Others,
out-look on the gangway, along with Stewart, when she was wrecked. HighCourt.
The night was clear and calm. I remember when we came in sight of ■'^"S- 29.
the Portpatrick light. I came on deck at a quarter past twelve, and '~~-
had seen the land ever since. I left the gangway twice before the u^^-.a
vessel struck, and asked him if he saw the land. I had seen it first &c.
rather to the southward of Dunskey Castle. He said he did, but
nothing else. I went back to the look-out, and passed Portpatrick
light about 1 50 yards. I made a remark to Stewart about our being
BO close, and he said he never remembered our being so close. I ran
aft to the wheel for the purpose of putting her a-starboard. I heard
somebody call out ' land ahead.' The helm was put hard a-starboard
when she struck. She gave a small bit of a sally to port. I left im-
mediately for the gangway, and looked to the land. I found her
quite close. After doing that, I went to assist getting the boat^ out.
I saw the starboard boat out, and the passengers in the water. I was
saved by one of the funnel stays. I had been about two years and a
half on board the Orion. When passing Portpatrick her speed might
be about 13 knots an hour. She drew from 11^ to 12 feet, and I think
she was 400 horse power.
By Mr Penney. — I belong to the second mate's watch, which
changes at twelve o'clock. The vessel was then to the northward of
Dunman Head. I can't say how far the vessel passed off at that time.
I saw the dark loom of the land, and continued to see it till we
reached Portpatrick. I reported Portpatrick light fifteen to twenty
minutes before the vessel struck. I went to the mate, and when I
returned she was going past the pier head. When the vessel struck
the tide was right ahead.
By Mr CRAnpuRD. — I was on the master and second mate's watch.
I took the place on the watch of James Donald. The captain came to
the gangway and spoke to me about one o'clock. He told me to keep
a bright look-out. He crossed in the direction of Stewart. I saw
him leave the gangway. I went out to the vessel after I got ashore.
I saw the captain on the rigging. I proposed to bring him ashore,
but he would not ; he said he would go into his own pinnace. The
vessel had then settled down.
By Mr Logan. — I was in the Orion before Captain Henderson or
Mr Langlands. The covers on the boats were made a month before
she went to Havre. These were fastened by white twine. Each life-
boat rowed twelve oars. Instead of under the cover, these oars were
always lying, kept together by means of a bit lashing round them.
There was also, inside, a mast, a'rudder, and the tiller. Besides this,
under the life-boat there was a skid, so placed as to enable the boat to
be launched more readily. That improvement was introduced by Mr
41 2 CASES BEFORE THE HIGH COURT
No. 68. Langlands. There was nothing in the position of the chops to prevent
HaidersMi ^^^ ''®'°S launched. When lifted out of the chops, the fore davit
and Other?, would be swung out, and the aft davit did not require it. Besides the
High Court ^o^r boats, there were a number of cork fenders. When I saw the
Aug. 29. boat swamped on the starboard side, I assisted the mate in getting out
! a large square fender, and lowering it to those in the water. I then
Culpable gg^^ ^jjg larboard boat, full of passengers, still hanging by the davits.
&c. ' By the master's orders, I cleared the passengers out of the boat, got
in, and found the oars all right. Before I got her lowered, she was
again full of passengers, and I could not lower the tackle on account
of the weight in her. ' In regard to the spray-cloth, it would, when
the boat was launched, fall off like a cobweb.
By the Solicitor-General. — The boat was upset by the vortex of
the vessel filling and upsetting her, which would have happened
whether she was clear or not. I had talked with Williams, the second
mate, about the variation of the compass on the binnacle and on the
bridge. It was more observable after her return from Havre. I
looked now and then at the compass on the gangway. She was then
steering north.
By the Court. — The bridge compass pointed more to the north
than the binnacle one->-about a point to the eastward. When I saw
the bridge compass they were steering north all but once. It was be-
tween twelve and one o'clock that I observed the deviation, and on
that occasion they were steering north by west. When the captain
came and spoke, the land was visible. The light had not been seen at
that time, and I was aware that we had not passed Portpatrick. It
would be about five or ten minutes past one when I left the gangway
to speak to Williams. I did it because I was alarmed at our proxi-
mity to the shore ; and by the time that I returned to the look-out, we
were past the pier. According to ray recollection, when I came up on
deck, she was half a mile off the shore. She ran closer in-shore after
that. When I spoke to Williams, and intimated the closeness of the
land, he was walking, quite sober. I did not hear if he gave any
order in consequence, I heard Stewart calling after me ; but I did it
of ra-y own accord. I could not say about what time after this the
captain came up. I could not say she was about that time closer on
shore than usual. It was in the master's and second mate's watch. I
cannot say that the master is responsible for the watch, and do not
know why it is called his watch. The chief mate's watch ended at
twelve. Till that he had no charge, unless he chose to regard the
state of the weather, and so forth. The next watch the master had, by
the understanding in the ship, to look after as well as the second mate.
The watch before that was, on the contrary, the watch of the first
mate alone. At that period of the year, we had a regular watch at
four, which was taken by the chief mate. I have been in other vessels,
and sailed with other captains. This second mate's watch is, I have
AND' CIRCUIT COURTS OP JUSTICIARY. 413
generally found, left to the second mate by the master, just as he No. 68^
thinks proper. The charge the second mate takes is, in truth, to Henderson,
relieve the captain. and Others.
James Stewart, another ofiM seaman on hoard, said, — I was on High Court,
the bridge with Wilson at the time the Orion struck. "Wilson went to ^°^^^-
speak to the mate when we were about three-quarters of a mile from
Portpatrick. When he came back I could not see land a-head. Homroidt,
When a-breast of Portpatrick light he went back to the mate a second he.
time. I then sung out that land was a-head. She struck soon after-
wards, but not with any great crash. She got off the rocks and settled
down headforemost. It took us about ten minutes before we could
get the covers off "the boats. 1 assisted at uncovering the one on the
"starboard side ; and, on trying to get her out, found it was jammed in
the chocks. She first went down a piece, and then the vessel careen-
ing over, she swamped. I then ran to the main rigging. I am
satisfied that it was not the passengers in her that prevented her being
lifted out of the chocks. There was no look-out at the bow.
By Mr Grauford. — The gangway is the general place for the look-
out, and we have a clear view from that place. Before we came to
Portpatrick light, I spoke to the mate about our course. I came on
deck about twelve o'clock; we were then off Dunman Head. The
captain came subsequently on deck, when we were half-way between
Dunman Head and Portpatrick. He spoke to Wilson first, and then
to me. He told me to keep a bright look-out. I was on the larboard
side. We might, at that time, ,be a quarter of a mile from the shore
to the north of Port Nessock Bay.
By Mr Logan. — I had been four weeks on board the Orion before
her loss. I remember seeing Mr Langlands after she struck. He
told me to go and assist in lowering the boats. I had been on the
gangway after the vessel struck, for only about a minute or so. I ob-
served before I left it, that they were attempting to lower the larboard
quarter-boat, after the life-boat was swamped and the vessel careened
over. There was a deal of trouble in lowering it. They were chiefly
passengers about the boat', and I did not see any of my shipmates at
the tackle. There was a good deal of confusion. I saw Mr Lang-
lands active, and doing all he could.
By the Court. — I was bred a regular sailor, but have had some ex-
perience in steamers. When the captain came up the gangway the
land was visible. I did not know whether he left the deck or not.
I left him to judge himself as to what course should be steered. When
Wilson went the first time to the mate, land was visible from the
look-out, and I did not interfere until I thought there was actual dan-
ger. I expected him to steer off the coast sooner, and left him to do
his own business, of course, until I thought he was running too close.
I was on the bridge when she struck. I heard the captain's voice
after she struck, ordering the boats to be cleared away. It was about
414 CASES BEFORE THE HIGH COURT
No. 68. ten minutes before she went down. She stuck for a short time, and
HendCTson *^^^ ■^®"* * '^**^^ forward to the northward. The engines stopped all
and Others, of a sudden. I did not know the names of the rocks.
High Court. Ddncan Campbell, Washinffton Street Glasgow. — I was a seaman
Aug. 9. on board the Orion, and recollect passing Portpatrick pier ; we were
• very close to it ; I think not more than a ship and a-half s length dis-
Culpable ^.^^t. I was not thrown down by the concussion. Before she struck
&c. ' I called out ' starboard.' I saw the land a-head a little on the lar-
board bow. It might be less than a quarter of a mile, and called out
' bard a- starboard,' and did so in consequence of a feeling of danger.
jBy Mr Bell. — I did not try to lower the boat, but cut away the
belts. I had no obstacle to my knife. I left the ship after she was
sinking down.
J5y Mr Logan. — I entirely disengaged the spray cloth. At Liver-
pool, some of the oars were taken down to be cleaned, and some of
them were lying on the gangway.
David Adair, fisherman, near Portpatrick. — I recollect the
night on which the Orion was lost. I live in a house near the end of the
pier. I was in an upper room in my house, baiting lines. About one
o'clock I heard the noise of a steamer ; looked out, and saw her coming
right past the South-pier head. She was very close; about a gun -shot
from where I was, and very near to the end of the pier. I took alarm
immediately on seeing her, and ran down instantly to see if she struck
the Ward Rock. I found she had struck, and gave the alarm. I
heard the crash, and saw she was fast. It was a fine calm morning.
The boat I was going to fish in was lying afloat, and John Oake got
into the boat with me, and we pushed ofi". It might have been five
minutes after she struck .that we reached her. She was then going
down, bow foremost. Our boat was the first which got out. We took
as many passengers as we could. A great many boats followed. I
landed the passengers on the pier, and with a little boy and a fireman
I returned. The Orion was then down under water. I picked up as
many as the boat could hold. I never saw a steamer pass as close be-
fore except in coming in. I know the Barnoch Rock ; it was quite
visible. I could not say, however, whether it was on that she struck.
She was sinking to the southward.
B^ Mr Logan. — On running back after seeing her strike, I lost
sight of her.
Bi/ Mr Penney. — When I ran down, I saw the vessel a little to
the north of the Ward Bay. She had struck then, and I got back im-
mediately.
jB«/ the Court. — I saw the vessel stopped with the strike. I was
in too great a hurry to observe [minutely j but when I came back she
was to the south-east of the Barnoch Rock. In running down to
Ward Bay, I expected to see her strike ; and even if she had not
struck, she could not have weathered the point of the coast. In run-
AND CIRCUIT COURTS OF JUSTICIARY. 415
ning down, I was greatly alarmed. The morning was quite calm, but No. 68.
was a little thick at the Ward Head, the direction in which the tj j'^g™
steamer was steering. After passing the pier, her head appeared to and Others-
be pointing inwards. When I first saw her, there was plenty of time HighCouvt.
at the speed she was then going, to have cleared the shore if her course Aug. 29.
had been altered. When I got to the Ward Bay, she did not appear
to be turned outwards. The boat I used was of the ordinary fishing Culpable
sort, 16 feet keel. His Lordship dismissed the witness by saiyng ' Well, &c.
' my man, you seem to have acted with great presence of mind, and, I
' have no doubt, was instrumental in saving very many lives.'
John Samson Oke. — My house iu Portpatrick is near the pier.
Recollects the night the Orion was lost. I was sitting on my bed
reading. I heard a steamer passing, and went to the window, and saw
her coming from the south, with her Jights. 8he was passing the pier
with great velocity. I thought she was coming into the harbour, she
was so near. I observed she did not come in, and it then struck me
that all was not right. I hastened to finish dressing, on purpose to go
out and see if there would be an accident. I heard a crash before I
left the window; but I had previously lost sight of her. It was rather
a long double crash. I called out ' Steamer a-shore,' and then ran out
immediately to the Ward. I went out in a boat along with Adair.
On going out of the harbour, I saw the steamer about where she is
now. She appeared to be backing slightly ofi" the shore — seaward.
On reaching the ship, I saw some men in the water, and brought them
and a number of others on shore. When I first saw her she was nearer
the shore than she afterwards was. I have been in Portpatrick five
years, and never recollect seeing a steamer pass as near before, not
even when they were landing passengers.
By Mr Penney. — On running out and finding Adair, I looked out
and could not see her, and he told me she was on the rocks.
David ARnatmrno, fisherman. — My house in Portpatrick is near
the harbour. On the morning the Orion was lost, I was unwell, and
walking about my room. I heard a steamboat's paddles, looked out,
and saw a steamer coming from the southward. I saw her lights as
soon as she passed. I could not say how near she was to the south
pier, but I thought if I had been there I could have pitched a stone
into her. Excepting once, I don't mind ever seeing one so near before.
That was the Mazeppa, which was lost at Dunman. I thought the
Orion was coming into harbour, and I lay down on bed, when I heard
the steam let off. My daughter came and said a steamer was ashore.
I got out and roused other people. I ran to the Ward, and went off
in a boat to the ship. The light in the inner lighthouse was burning
quite distinct.
By Mr Cbaufdhd. — I did not go out in the same boat as Adair.
I gave the alarm. There were only five or six men in the rigging
416 CASES BEFORE THE HIGH COURT
No. 67. when I went out. I cannot say if the captain was one, for I could not
Henderson *®1^ °^^ '^^^ ^^°^ another.
and Others. John M'Haffby. — I was second steward of the Orion on the night
High Court- she was lost. She had 115 passengers on board. I had no list of
iffo steerage passengers. Her usual average number of steerage passen-
-— gers was from forty to sixty ; and, as near as I could say, she had that
Homicide night about forty. The crew, engineer, and altogether, may be forty.
&<=. Mr Marchbank, a commercial traveller from Glasgow, was on board.
I saw his body next day; also, that of Mr Hume of Glasgow. It
was got in a bokt alongside the steamer. I saw a number of other
dead bodies.
William Ross.— I am superintendent of police in Stranraer. On
the morning of the 18th June, after the wreck of the Orion, 1 pro-
ceeded to Portpatrick, and found several dead bodies. I got an unoccu-
pied house, to which they were removed ; nineteen were brought in the
first day, and subsequently, from forty to fifty in all. I got the use of
a diver's dress, and went down and examined the Ward Rock. I
found some pieces of iron (which are produced) among the broken
stones. That was on the outside towards the sea. There were a great
many fractures and fragments. I examined the Barnoch Rock, and
found no fractures there. I measured the size of the plug-holes of the
boats of the Orion ; they were all | inch. In the course of my ex-
amination, I made a model of the fracture on the rock. It is an accu-
rate representation of it as I found it.
By the Court. — It is a hard rock. It might be about 14 feet long,
and the depth of it, as far as I could see, 12 or 13 feet. It was diffi-
cult to say how much had been newly exposed. The log of the
steamer I obtained afterwards, from Mr. Langlands, on board the
Duntroon Castle.
William Knott. — I am a seaman and diver from Portsmouth. I
went down lately to the Ward Rock, and found some pieces of iron
there. I think there might have been about a ton, or a ton and a
quarter, of rock fractured— evidently a recent fracture.
Edward Hawes, R.N. — I am a commander in the. navy. I was
general superintendent at Portpatrick, and had a charge for some time
of the packets between Portpatrick and Donaghadee. I recollect the
night the Orion was lost, and went out with a boat. It was the first
quarter of neap tide. In the naval service, when a ship is running
along the land, it is the rule that the captain be on the watch. I saw
the boats of the Orion ; and, in my opinion, it is a very improper
practice for a steamer to have her boats covered. Looking to the ob-
ject of a life-boat to be ready for so sudden an emergency, it is incon-
sistent with her use, I thinjc, to have her so covered. I should think,
also, it would be more safe to have the plugs in.
By Mr Logan. — It is the practice in the navy to have the plugs in
the boats attached by a lanyard to the boats. That is the practice in
AND CIRCUIT COURTS OF JUSTICIARY. 417
the navy, and also in other ehips. In all cases, the boats must be No. 68.
, . , , ... Thomas
secured in a handy position. Henderson,
DuGAiiD Turner. — I am commander of the steam-sbip Clarence, and Others.
from London to Leith. I have been a commander in about twenty-one High Court.
vessels, and I have been a man before the mast before that, between ^}^^-^^-
looU.
Greenock and Liverpool. The time on board these vessels is divided -
into watches. The second mate's watch is generally termed the star- jio^j^i^^e
board watch. The captain has no watch ; be ought always to be on &e.
deck at night. I never went to bed in any of my voyages at night.
In my opinion, whatever was the weather, the captain, on such a sta-
tion as that between Liverpool and Glasgow, ought always to be on
deck.
By the Court. — There are no rules laid down ; but I consider that
is what is proper for the safety of the passengers in coming along the
coast.
By Mr Deas. — ^The captain is responsible for the ship's course, and
also for the boats. I consider the mate also responsible ; but the cap-
tain should see the thing properly done. It is, in short, the duty of
the whole three ; but they are only responsible to the captain. I don't
consider any of the mates are allowed to change the course. In sail-
ing between Liverpool and Greenock, I became acquainted with the
coast. I know the Baruoch Rock, and have seen the breakers on it.
"While on that station, I was in the practice of stopping off Portpatrick
for passengers ; but, -to my knowledge, I never came nearer than a
mile and a half. Such were the master's orders ; but there was no
particular reason for it, except a dread of going too far in. The coast
is not considered rocky, except at the Baruoch. I know the plug in
a boat. The usual practice is to fasten them by a chain. I never
cover the boats. I consider the covering of boats a very improper
practice, on account of the delay occasioned in getting them off.
By Mr Craufurd. — The captain's duty is to be always about ; but
the mates have different watches. I always take an anxious care of
my vessel. I believe it is the practice of some commanders to retire
for a short time. I generally take rest from nine to twelve in the
forenoon. The coast at Portpatrick is not dangerous, unless you go
close in.
By Mr Logan. — It is a very general practice to have the boats
covered, both on the east and west coast. There are several other
steamers from Leith to London, and other large sea boats. I am
not aware that covers are allowed in our Company. I don't know
whether in any other ships the boat's plugs are attached by chains.
The practice was adopted some years ago, but before that it was never
thought of. If not in the plug -hole, and unfastened, L would put it
in the stern sheets or the lining.
James Murray, Glasgow. — I am a first-class pilot on the Clyde,
and was for some time a captain in the merchant service. There are
418 CASES BEFORE THE HIGH COURT
No. 68. two watches, — the captain's watch and the chief mate's watch. The
Hend™son ^^''''"'^ mate is recognised as an officer in the captain's watch. In run-
and Others, ning along a coast, I should say the captain was bound to keep the
High Court, deck, whatever be the weather. He would not be entitled to sleep
Aug. 29. during his watch.
1__ By Mr Cbaufurd. — I was master of a ship of 400 tons from Lon-
Culpable ^^^ ^^ Quebec, besides several others. The last I commanded was the
,&c. James, of 148 tons, plying to Leghorn. During the first mate's
watch, the captain leaves the deck. It is in the second mate's watch
I consider he should not leave the deck. During long voyages, he
might leave instructions with the second mate.
By Mr Logan. — I never saw the boats' plugs attached by a lanyard.
By Mr Bell. — Supposing fog had come on, or had threatened to
come on, I do not think the captain should have left the deck.
James Morrtson. — I am a first-class licensed pilot on the Clyde,
and was a captain for ten years in the merchant service. There are
two watches, called the larboard and the starboard watch ; or, the cap-
tain's watch, and the mate's watch. The second mate is an officer in
the captain's watch. When the vessel is running close to the shore at
night, he might have occasion to go below ; and, in fine weather, the
command is generally left to the second mate. If a fog threatened to
come on, it would be the duty of the second mate to call the captain,
and to keep the deck at that time. In many ships there are no second
mates ; and generally a man is chosen out of the ship's company to
keep his watch.
By the Court. — I refer to long voyages, of a fortnight or more.
By Mr Logan. — I never saw the plug fastened by a lanyard.
Abraham Parkes. — I am a lieutenant in the Royal Navy, and
commander of the steam-ship Dasher just now. I was stationed on
the west coast for two years. I know Dunman Head. In navigat-
ing northwards, I do not think a distance of 200 yards from the shore
would be at all improper. I should say, that, if from Cromack Point,
the most projecting headland, you steered N. \ W., it would take yon a
mile off Portpatrick. I would consider it most assuredly right in keep-
ing all that distance off shore, if navigating at night. I think 200
yards off Dunskey Castle is not at all a safe course. I consider, if
Portpatrick was reported ten or fifteen minutes before coming to it,
with any ordinary skill, a vessel should not be found close off Port-
patrick pier. Certainly, it was not proper for the commander of a
large steamer running along shore to be anywhere but on deck. If he
had left for any short period, he was bound to have given instructions
as to the course of the vessel, and he ought not to have left the mate to
follow his own course. If a fog appeared off the Mull of Galloway, -it
was an additional reason for care on the part of the commander. I do
not think it was right to have the life-boats laced up in canvass covers
on such a voyage. I have never commanded a steam-ship with a life-
boat.
AND CIRCUIT COURTS OP JUSTICIARY. 419
By Mr Cbaupurd. — I think the second mate has no discretion. No. (is.
Supposing the captain deceived in giving instruction, he might be en- ■'^^"''"^s
titled to make an alteration. and Others.
By Mr Looan. — Prudence would have dictated that the boats jjieh Court
should have been uncovered on leaving harbour. I don't recollect of Aug. 29.
being on board a ship in actual locomotion with the covers on-
By the Court.— I do not refer to large steamers, and have been Culpable
, , , . 1 mi • . Homicide,
more accustomed to the steamboats in the navy. Ihere is no parti- &o.
cular reason, in the night time, from deviating from the direct course.
In spring tides, they might keep a little inshore during the day time,
but at neap tides, certainly not. In a strong spring tide, you would
gain something by keeping near shore, thereby avoiding the strength
of the tides; but in ueap tide there is no advantage. In deviating
from the direct course, what you would gain by the tide you would
lose in the distance. The breadth of the channel is, I think, nineteen
miles, all free for navigation. In taking the Mull of Galloway, if I
had not seen the light, that would induce me to keep a good way ofif
shore, and it would have made me the more cautious afterwards. My
vessel is not an iron one. The variations in the compasses, either in
wooden or iron vessels, is not great, after they are adjusted. But if
the variation is known, it ought only to induce the captain to steer by
the one most correct. The steersman, of course, goes by the binnacle
compass ; and if he is left to steer, it is known that he can go by
no other. In one of the large steamers,'! consider the bow the most
proper place for the look-out ; but if the steamer was high, I should
I^ace one on each paddle-box. The station there is better than on the
bridge, because it is free of the rigging of the mast. I know the rocks
well ; and was never afraid of making the coast, because the breakers
are seen in the thickest ios.
It being now seven o'clock, the Lord Justice-Clerk
intimated that they would adjourn the further hearing of
the case till Friday morning at nine o'clock ; and that
the Jury would be conducted, by the officers of Court, to
where accommodation had been provided for them.
The Court then adjourned.
1850.
The trial was resumed this morning at nine o'clock, Aug. 30.
the Lord Justice-Clerk, Lords Wood and Ivory presiding.
Evidence for the prosecution was resumed.
Patrick Horner, labourer, Portpatrick, recollected getting the
alarm that the steamer was sinking. Heard some cries ; and when he
went down to the bay, he found the life-boat coming ashore. There
420 CASES BEFORE THE HIGH COURT
No. 68. were six or seven seafaring men, and about eighteen or twenty passen-
H^nd"^n S^rs. All went out of the boat but one boy. The boat was half full
and Others' of water. Tried to bale it with a hat. After having plugged it, suc-
High Court.' <=s®'^^'^ i"! baling it. The plug was out at the time. Then pushed it
Aug. 30. out from the shore for six or eight paces. Found something entangling
' her to the rocks. There was a rope fastened to the bottom of the boat,
Culpable gjjj g, ^avit suspended to it, which impeded its progress.
&c. ' Laweence Ferkieb, assistant-keeper of the Mull of Galloway
Lighthouse, said, on the night of the wreck, a fog came on about
twenty minutes past nine, and continued till about ten minutes or a
quarter before twelve. Heard the sound of a steamer about a quarter of
an hour or ten minutes before she passed. The steamer was about a
quarter of a mile distant from the shore.
James Scott Brown, keeper of the Lighthouse, was examined in
regard to the state of the weather. Was shown a book in which he
was accustomed to record the state of the weather for the twenty-four
hours at nine p.m. On the night of the 17th, as well as on that of the
18th, the entry was ' south, breeze, fog.'
John Gray, nautical instrument maker, Liverpool, supplied the
Orion with compasses in July 1847. On March 20, 1850, adjusted
the compasses of the Orion according to Professor Airy s. Had a con -
versation with Captian Henderson on the 30th May, at which witness
asked how the compasses were ; he replied, they were wrong. Went
on board, and made a bet that the compasses were quite right. Ex-
amined them, and gained the bet.
By Mr Pennby. — Was well aware of the influence of magnets on
the compasses, and of the influence of iron. A small quantity of iron,
in a particular position, will afifeet it at a certain distance. A point of
an umbrella at a slight distance might afiect it ; and if it was mag-
netic, it might have a considerable efiect. Iron exposed to hammering
or friction becomes magnetised. In adjusting the compasses, the head
of the vessel is placed due north, and place magnetic bars in such a
way as to counteract local attraction, perhaps as many as eight bars for
one compass. The compasses require readjustment from time to time.
Found the compasses of the Orion to agree within 1 degree. In a par-
ticular course, there was a difierenoe of 2^ degrees ; but that was the
maximum. If witness found, on any particular voyage, the compasses
went wrong, he could not attribute the error so much to local attrac-
tion as to vibration j but it might occur from local attraction. The
course in which an error was most likely to occur would be west, where
the vibration was 1^ northerly; and north-west, 2^ northerly.
By Mr Bell. — Sometimes the compasses will not require adjust-
ment for seven years.
By the Lord Justice-Clerk. — When he said that variation would
occur from local attraction in one voyage, he referred to the introducr
tion of iron near the binnacle. When the compasses were adjusted,
' AND CIRCUIT COURTS OF JUSTICIARY. 421
and no,iron near the binnacle, the probability of disturbance would be No. 68.
less in an iron than in a wooden ship. There would be a difference Henderson,
against the iron, if the iron touched the hull of the vessel. and Others.
William Caktek, diver. — Was employed on the wreck of the High Court.
Orion. Examined the starboard bilge on the 25th June, and found a ^g?Q^®"
great hole. Might be four feet broad, and six feet high from the bot — — — — —
torn. The rent might be twenty feet. Most of the iron belonging to Hom^ide
the hole was hanging over like a flap. Found three dead bodies in the &-c.
cabin. Mr Smith and Mr Hume were two of them.
Captain Gipp Robinson, R.N., was then re-examined as to the
flow of the tides in the Channel and on the Portpatrick shore, and as
to the probable course and position of the vessel when steering in pre-
scribed directions for a certain length of time.
Miss Elizabeth Colquhoun. — Was a passenger in the Orion,
along with her cousin, Mrs Houston, of Glasgow. Mrs Houston had
two children, — James, two years and eleven months, and Mary,
younger. Was in bed when the ship struck. Found the water already
in the cabin. When witness went on deck, there was great confusion,
and the ship fell over on her broadside to seaward. She and her
cousin fell into the water. Got hold of a rope, but lost it, and was
under the water some time. Got hold of another rope, and held on
till she was saved. Had the boy in her arms when the ship heeled
over. Saw both the children next day dead at Portpatrick. Her
cousin was saved, but was still indisposed.
John Bobebtson, of Messrs Caird and Co., builders of the Orion,
re-examined. — ^The length of the keel of the Orion was 200 feet, 210
fore-reach; the depth of the hold 18 feet 6 inches, breadth, on the
beam, 28 feet ; the height of the mainmast, 44 feet 6 inches ; and the
maintopmast, from the heel, was 110 feet, and the other masts in pro-
portion. The height of the main-orosstrees was 57 feet. The engines
were 400 horse-power.
This closed the evidence for the prosecution.
The declaration of Captain Henderson, taken at Portpatrick, before
A. M'Neel Caird, Esq., Procurator-fiscal, Stranraer, on the 19th
June, was read. It stated that on the evening of the wreck the wea-
ther was fine, with a north-west wind. The vessel passed the Mull of
Galloway about midnight, when the watch changed, and the second
mate was the ofiicer of the watch. There were two look-outs, besides
the man at the helm, and the oflicer of the watch. Saw them all at
their posts before he retired to his own room. At the time the vessel
struck he was lying on a sofa in his own cabin on deck, asleep. Did
not consider it his duty, in the state of the weather and position of the
ship, to be on deck at the time. He was in a state of fatigue, and re-
quired rest. Was aroused by the shock, and rushed on deck, and dis-
covered that the vessel had struck on a rock: Saw the land, and knew
422 CASES BEFORE THE HIGH COURT
Thomas ^^*'® ^''^y w^ere. Thought that the accident happened by the mis-
Henderson, calculation of the second oflBcer of the distance of the ship from the
and Others, {gj^^^ After the accident, he exerted himself as much as possible to
High Court, save the lives of the passengers, and as far as a man could do, thought
1850. ' ^® ^^^ "^""^ ^^ duty. One of the boats — the starboard life-boat — on
-^-j — — — being let down, got under the paddle-wheel, and was swamped by the
Homicide, vessel sinking. Did not know how many boats reached the shore with
^"^ passengers. There were some boats came from the shore, and in the
grey of the morning it was difficult to distinguish between the shore-
boats and their own. Considered the ship boats to be in proper order.
Went up the rigging as the ship sunk, and remained' there as long as
the top of the masts remained above water, and till he saw all the pas-
sengers clear of the wreck. He was the last to leave the ship. The
shore-boats were very cautious in approaching, for fear of a rush of
passengers. He had left special instructions to call him if there was
any change of weather. It was the usual practice of the commanders
of the other vessels on the line to give such instructions in similar cir-
cumstances. He was not called, but was aroused by the shock of the
vessel. When the ship struck, he stripped himself in order to swim
ashore, and he was almost naked when taken off the wreck.
The declaration of John Williams, the second mate, taken also at
Portpatrick, was then read. He stated that he was on the deck a few
minutes after midnight, to take the turn of his watch. The master re-
mained on deck till half-past twelve, and on leaving said, ' John, if it
becomes any way thick or hazy, mind give me a call.' When the ves-
sel was off the pier of Portpatrick, it suddenly became thick. Conld
see the pier quite distinctly at first, but when declarant saw the fog
coming on, he gave orders to John Kelly, who was at the helm, to keep
the vessel north by west, a half point off from the land. Was going
to call the master, according to instructions, when the vessel struck.
Could not understand how the accident occurred, unless the current
had swept the vessel in-shore against the helm. It was not unusual,
on this part of the coast, for the master to go to his room for an hour
or so. Declarant kept the vessel near the shore for the purpose of
shunning the tide. The master gave him no order to do so on this oc-
casion. Remained on board till the ship went down, and was saved
from the rigging.
The Solicitor-General then stated, that he had ex-
pected to be able to fix on the first mate, Langlands, an
independent responsibility in regard to the state of the
boats, and therefore he had been included in the indict- .
ment along with the captain and second mate. He
thought it right to state, however, that the Crown had
not found that separate responsibility to exist to the ex-
AND CIRCUIT COURTS OF JUSTICIARY. 423
tent expected, and,under these circumstances, he thought ^°-^^-
it was consistent with his duty to withdraw the charge Henderson,
and Others,
against the first mate. —
Mr Crawfued said that he proposed to call the first Aug. so. "
mate as evidence for the captain, which was allowed. 1_
The Jury having returned a verdict of not guilty against Homfcid^e,
Langlands, he left the bar. ^°'
Mr Crawfurd then called the following
EXCULPATORY EVIDENCE,
Captain Johnston, — I am harbour-master in Glasgow, and have
been a sea-going man since 1808. . I was five or six years in the Glas-
gow and Liverpool trade. Knew the Orion well ; a very fine vessel,
and equipments were very complete, including her boats. She was, in
point of fact, considered the best vessel that went out of the Clyde. I
have known Captain Henderson since he was a boy. His character
was unimpeachable, ^nd he was a clever, active sailor. I knew him
to be in several responsible charges before he went to the Orion. For
twenty years he has come under my notice as harbour- master, and as
captain of various vessels. I remember a schooner he had charge of in
the Mediterranean trade. He is a very steady, sober man. The Orion
had covers for her life-boats. That is pretty general. During the
time Captain Henderson was the commander of the Orion, he was
much approved of, and had the confidence of the public.
Captain John Boyd, — I retired about a year ago from the command
of the Admiral steamer, having been for sixteen years previously in
the Liverpool steamers. Captain Henderson joined her when I left,
I had no written instructions when in command. But I am not in the
same company ; I was in Thomson & M'Connell's. I, as captain, had
no particular watch. In fine weather, the first and second mate took
watch, with myself going backwards and forwards. The captain was
always on deck going down the Mersey, and on deck going up the
Clyde, and on deck off the point of Ayre, the Mull of Gallovvay, and
generally the Cumbraes. I was in the habit of retiring for rest occa-
sionally for rest in good weather, after nearing the Mull of Galloway.
I gave instructions to be called in a change or fog. I knew that was
the practice in the service. When we got to Dunman Head, the ge-
neral course was north, and when off the Point, a little easterly. We
then went fully ^ point west, to get out again. That change made it
abont equal to a due north course, equal off Blackhead. Supposing a
course taken from Dunman head N. ^ W., it would take her two miles
off Portpatrick. If that course commenced half.a-milo off Dunman
2e
424 CASES BEFORE THE HIGH COURT
No. 68. Head, that would be quite a safe course. There is deep water up- to
Henderson Dunman Head, and, supposing the vessel were still nearer it, the course
and Others, would be still safe. If from the same point, N. ;^ W. I consider would
High Court, be quite safe, as I used to steer north. I put the look-out — one on the
Aug. 30. gangway, and the other on the forecastle head. Two men on the gang-
'- — way did equally well. The life-boats were covered. Other vessels
HomSde ^ ''^° ^^S^ forecastles, and two life-boats, and two quarter-boats. We
&e. had plugs in all the boats ; the hole is generally kept open, as the cover
does not keep the rain out. The plugs were kept in the locker in the
stern of the boat. They were not fastened to the plug-hole. Every
sailor pays a particular regard to the plug. If they find it about they
put it back. If I saw Portpatrick light on the starboard bow, I would,
keeping north, consider myself quite safe.
jBy the Court, — We might pass within a quarter or half a mile.
If the light of Portpatrick was 2^ points on the starboard bow, it
would be quite safe to steer north.
JSi/ the Solicitor-General. — We generally passed Dunman Head
at half-a-mile, and drew to within half-a-mile of Portpatrick as we
proceeded. The captain, with the Liverpool pilot, has the responsibi-
lity of navigating the Mersey, and with the Clyde pilot, in the Clyde.
He may interfere with the pilot. I consider myself entitled to go to
sleep during the mate's watch, or during the second mate's watch. I
considered myself entitled to four hours' sleep ; during the whole watch
in fact. We were generally out, however, in that time, being gene-
rally called when at the Cumbrays. I am responsible for the course
of the vessel, not, of course, if altered without my orders The second
mate is entitled to alter it without my orders. In clear weather I
don't consider myself responsible, for there is no danger whatever. If
the vessel run straight by the land, a quarter of a mile off, there is no
danger. He must have run closer, however ; and if he did go nearer,
I would say I was not responsible, because it would be beyond what I
would expect from him, as a thing unreasonable and unsafe. If the
Mull of Galloway was covered with fog, I would not go down to sleep.
It is a very common thing for fogs of that kind to come and go. If I
saw the fog at the Mull of Galloway, I would not have thought it
unlikely that it should have again come down. The covers on the
boats are laced underneath. The boats are hung on deck, inside. It
was seldom we examined them. They might hang on the davits for
eighteen months, without ever being taken down.
By the Court. — In my ship there was a chief mate and a second —
not a third ; they took their watches alternately. The starboard, or
second mate's watch, was generally called the captain's watch. I sup-
pose it was so called because the captain was presumed to take parti-
cular charge of that watch. In point of fact, however, I took no more
watch of the one than the other. I was generally in both, and I can-
not tell whether I was responsible or not for them. I might look a
AND CII^CUIT COURTS OF JUSTICIARY. 425
Utile more into the second mate's. In point of fact, it was my watch ^0.68.
in which the second mate relieved me. If the second mate went Henderson,
wrong, I did not consider myself responsible, for I suppose the owners and Others.
would be satisfied with the competency of the man. I very seldom go High Court,
below during the first mate's watch ; but after rounding the Mull of ■*'°g^j(,_ '
Galloway, we consider ourselves quite safe for two or three hours. — — — -j —
The course from Dunman Head was a wrong course, unless changed Homicide,
in time, and it would depend on the time and extent of the change so ^<'-
taken, if the land can be clestred. In clear weather, we leave it to the
second mate to do that ; thinking that if a man sees the land too close,
he will not run ashore. If at the Mull of Galloway it had been foggy,
I would not, however, have left hira to do so. If the harbour light at
Portpatrick was made two miles off, there could be no difficulty in
keeping a quarter of a mile off. We generally pass at about 10 to 11
knots in fine weather. That is the full speed. If the land is seen at
Cromack Point all the way along, there can be no difficulty in keeping
the course. If there was a haze at the Mull of Galloway, it should
lead to greater caution. In keeping the watch, he went about all parts
of the ship, often on the gangway. We made three runs a fortnight —
six back and forward. The company gave us no instructions at all as
to watches, or any thing else ; but that just leads to greater responsi-
bility on our part. They don't divide the navigation between the two
mates of the vessel by any written orders. The departures are at va-
rious hours, to suit the tides. It took three tides with the Admiral ;
the Orion did it in two. The difference might be six hours. It was
very close work for her to do it in that time. This running close to
the coast was to endeavour to avoid the strength of the current, and
get out of the way of vessels. We gained very little, indeed, by avoid-
ing the tide ; it would, I think, be a mile at the outside ; but, then, in
the Orion it might be greater than in the Admiral.
John Gilmour. — I am dockmaster of the Clarence Dock, Liver-
pool ; and commanded an East Indiaman fourteen years. I had occa-
sion frequently to observe the Orion. She was a very fine vessel, and
her equipments were complete. There were covers to the life-boats ;
and among all the vessels he saw, he thought it was quite usual. I
never kept the plug attached to the boat ; it usually hung in the stern
sheets. I know Captain Henderson well ; and, in my opinion, he al-
ways handled his vessel well ; he was a steady, well-behaved man.
In the merchant service, the captain never had a separate watch, but
the second mate's watch was sometimes called the captain's watch. If
I had confidence in the mates, I would go indifferently to bed during
both watches. I know John Williams, the second mate of the Orion,
and always considered him a steady mau, and that he attended to his
duties manfully.
Captain»Crawpord, — I have been nearly forty years at sea. I
am now in command of the Princess Eoyal, belonging to the Royal
426 CASES BEFORE THE HIGH COURT
No. 68. Steam Packet Company. I have been in the Liverpool arid Glas^w
HendCTs^n ^^^^^ upwards of twenty years. I never had any written instructions,
and Othera! The Princess is a very swift vessel. I, as captain, keep no particular
High Court, '^^'"h. The first and second mates do so. The second watch is some-
Aug. 30., times called the captain's watch for distinction. I sometimes retire for
-^^^' rest for a little between Liverpool and Glasgow. The captain is al-
Culpable ways on deck in the Mersey, off the Isle of Man, and Mull of Gallo-
"&'" *' ^^y- ^^ generally take about nine hours to reach the Mull of Gal-
loway. The minimum passage of the Princess Eoyal is fifteen hours.
She was the swiftest next to the Orion. We could do it to Glasgow
in two tides. After passing the Mull of Galloway, I was in the prac-
tice of retiring to rest, under favourable circumstances. It requires
great attention to take the vessel up the Clyde ; and I think it reason-
able we should get a little rest, where we can take it, before doing that
duty. The captain is on deck from leaving Liverpool till past the
Mull. On passing Dunmau Head half-a-mile out, going north, I
would take a course of north a little west. There is deep water to
Dunraan Head ; and if nearer, the same course would be safe. A
course of N. ^ W. was, therefore, quite safe. In my opinion, it would
give a wide berth to the land all the way. If a course of N. ^ W. was
taken, no change would be necessary to take us past Portpatrick, after
clearing Dunman Head. As long as her head was kept straight, she
was safe. If leaving Dunman Head on a course N. \ W., with fine
weather, and leaving the vessel in the hands of a mate in whom I had
confideiice, I would have no hesitation in retiring. I would expect
him to keep her on that course. If there was a little haze on the land,
I would, with the same course, and if the sea was clear, have no hesi-
tation in doing so, if I required it. In passing Dunmau Head, if to
escape the tide, we took a course a little to the eastward, we changed
that course again, and we gave to Dunskey an ofling of from a mile to
two miles. By keeping a little more to the westward, we cleared
Blackhead. That course a little to the eastward, and then to the west-
ward, would have just brought us into the channel course, clear of the
land.
5y the Solicitor-Genekal, — If, on the Mull of Galloway, I could
not see the light for fog, I would not consider myself entitled to go
below ; and if the weather had been hazy throughout, that would ren-
der it still more improper. If the light is seen from the deck, it is a
distance of twenty-one miles. When we go below, we leave orders
what course is to be followed. The mate is entitled to alter that course.
It is left entirely to the discretion of the mate his informing me there-
of. Occasionally he informs me when he does so, and at other times
tells mo the time he did it when I come on deck. On the day of the
accident, it was low water at half-past twelve, and high water at half-
past six. *
B^/ Mr Penney, — In speaking of change, I mean any small point
AND CIRCUIT COURTS OF XUSTIOIARY. 427
of variation ; but, supposing the course was changed from an in-shore No. 68.
to an off-shore course, I would not consider the mate bound to acquaint Henderson
me with any small point of variation. and Othera
Captain M'Kellak, — ^^I have been in the Glasgow and Liverpool High Court,
trade for some years ; and am now on the Glasgow and 'Derry Sta- ^Y^^^"'
tion. While in the Glasgow and Liverpool trade I had no particular 1—
watch. The watch was divided into two — the first and second mate's ^"a^iei;]^^
watch ; the latter being called the captain's. He had no more charge &c.
of the one than the other, and had sometimes fully as much confidence
in the second as in the other. I always made a point of being on deck
at the Isle of Man and the Mull of Galloway. After passing from the
Mull of Galloway, that was the only part of the coast where I thought
I could go down in safety. It is an anxious and fatiguing duty to go
up the Clyde. I have had some experience, and I think it a good plan
for the captain to retire and take a little rest ; of course, only when
the weather admitted of it. It made no difference whether that was
done during the first or second mate's watch. The direct course from
Dnnman Head is N. ^ W. If sailing on that course, I would give a
wide safe berth to the shore. It would require no alteration to clear
Blackhead. It is deep water close to Dunman Head ; and if, on a
fine calm night, we were 200 yards off, a course of N. ^ W., it would
take us clear of the whole Scottish coast. If left on that course, she
would require to have nothing done to her except to keep her head
straight. Unless there was a change made, there would be perfect
safety ; and, if I had confidence in the second mate, I would have no
hesitation in retiring for rest. If I did so, I would expect that the
course was continued. The captain's cabin is on deck, right under
where the look-out stands, and the latter could waken him instantly,
by stamping with his foot. The look-out ought invariably to keep
his post, not even to leave to communicate with the ofiicer on the
watch. He ought to have called, or sent a deputy. If I, as captain,
had left two men on the gangway, I was entitled to expect they would
have kept to their post, and that the mate would not alter the ship's
course. Jf the ship was on her proper course, and the night was calm,
I would retire with a clear mind. In our ship wo have one life-boat;
and two other boats. The boats were of the same construction as those
of the Orion, but proportionably smaller. If there was a crowd of
passengers getting into them, it would impede the getting of them out
very much. I think if the passengers had kept clear, there was no-
thing to prevent them being lowered in a very short time. Our boats
are hung on davits, and confined in ' chocks,' as on board the Orion,
with covers also. I have seen the Orion ; and there was no screw to
fasten the boats to the vessel.
C AFT AW 'H.jiRBiB, of the Admiral. — I have been 16 years in the
coiiimand of Glasgow and Liverpool steamers; Captain Henderson
had been about a year in command of the Orion. He was a steady
428 CASES BEFORE THE HIGH COUET
No. 68. good seaman* On board the Admiral I have no watch. They are
Uenderson ^^^^^ ^^ *^® ^^^^ ^^^ second mates. On a fine calm night I would
and Others! have no hesitation in retiring for rest. The captain requires a few
High Court '>o"rs' rest to prepare him to take the vessel up the narrow channel of
Aug. 30. ' the Clyde. The bringing of her down the Mersey is a very anxious
^^''' duty. A quarter of a mile is a good berth to Dunman Head. If there
Culpable jg ^ haze on the hills, and we saw the sea clear, we would be still safe
&c. ' in going on the usual course N. ^ W. I would expect that course to
be kept till two Or three miles north of Portpatrick. I would expect
the loqk-out on the gangway to keep his post, and I would expect to
be informed if a change in the course was made.
Bif the SoLiciTOE -General. — I would not go below in a thick night,
even though the sea was calm and the land obscure. If there was a
haze on the Mull of Galloway, it would not induce me to stay on deck.
The light was a very poor light, and might not be seen. I would give
instructions to the mate in the event of fog.
Alexander Clarke. — I have been first mate of the Princess Royal
for five years, and have been engaged on Clyde steam-vessels for some
years before. There are two watches — the mate and the captain's
watch ; the latter of which is always kept by the captain. In round-
ing the Mull, it is generally the second mate's watch if we had sailed
the previous evening. The captain usually retires, if he considers he
can be allowed. In passing Dunman Head, we steer generally north,
which takes us clear of all the heads. If that course was continued
when a quarter of a mile off Dunman Head all the way along to
Blackhead, I have no dOubt of the safety of the vessel. If hazy, I
would keep the vessel a little off, and if there was more responsibility
than that, I would call the captain. If left on a course of N. \ W.,
I would be disposed to change the course farther inland. We do not
generally steer by compass, if the night is so very clear that we can
see the land.
Captain Wheeler, of the Fenella, a Fleetwood steamer. — The pas-
sage is shorter than from Liverpool to Glasgow. On my passage north,
after rounding the Mull of Galloway, and within a quarter of a mile
of Cromack Point, I would steer N. ^ W., which, in ray opinion, would
be a perfectly safe conrse. If passing the Mull of Galloway, and I -
left the mate in charge, and the night was fine, I would have no hesi-
tation in retiring for rest ; of course, I would expect to be called if any
change took place. I also would expect that the course I left would
not be altered without reason. The light on the Mull of Galloway is
not a good light ; it is too high. I have seen a haze round the light,i
and the sea below clear. I went to rest that morning at half-past two,
when off the point of Ayre. I was going to Troon. I saw nothing
alarming in the weather.
5y the Court, — It was not moonlight ; but I think it was near the
first or third quarter.
AND CIRCUIT COURTS OF JUSTICIARY, 429
By Mr Bell, — It was broad day light at half-past two. No. 68.
Captain Dalzbll, Agent for tJie Underwriters. — I have long been Hendersmi,
a sea-faring man. The Orion was as fine a vessel as could possibly be. and Others.
In boats, and other furnishings, she was remarkably well kept. I High Court,
know Captain Henderson, and found him a very superior oflScer. I ^"I'J***"
have frequently been between Liverpool and Glasgow, and when on — ::
deck, at night, I always found Captain Henderson most attentive. Hoj^fgi^e
The steamers on this line are insured at the very lowest rate. I don't &c.
think we have any such class of risks as the Liverpool risks, the steam-
ers were so superior and so well officered. There is no question that
the captain might safely retire in passing the Mull of Galloway, and
in the weather that was, as seen by me at Stranraer, I would have no
hesitation whatever in going below myself. The course between Dun-
man Head and Blackhead is generally N. \ W., but straight north
would keep her clear of all the rocks.
By Mr Penney. — The compasses must be adjusted before the ves-
sel sails, but they may, for a short time afterwards, go slightly wrong,
on account of the influence of local attraction. Wrecks have been
sometimes the consequence. One I was in myself, that of an iron ship,
called the Iron Duke, 330 tons, was wrecked on the coast of Norfolk.
I have been on board a steamer when she missed the light in conse-
quence of that deflection.
Captain Kelland. — I am captain of a Liverpool merchantman. I
have been a regular seaman for twenty-eight years. I never heard of
the captain keeping any special watch. The second oflScer generally
keeps the starboard watch. It might be called the captain's watch,
but he never recognizes any such thing. I should have no hesitation
in turning in, if I required it, during the watch of either of the mates.
John Honeyman. — I live in Glasgow. I was one of the owners of
the ship Glen Swilly, commanded by Captain Henderson. I had per-
fect confidence in him. In particular did I consider him a safe and
cautious man.
Adam Dawson, one of the officers of the Glen Swilly, said, he con-
sidered Captain Henderson a first-rate seaman, and a cautious, steady,
man.
Mr Langlands, the mate, was then called.—! was the first mate of
the Orion. We left Liverpool about thirty minutes past four. The
captain was on deck going down the Mersey ; also on deck passing the
Ayre light and the Mull of Galloway. Saw the lights on both. There
was a little haze on the Mull of Galloway. The latter light is very
high up. We were about three quarters of a mile ofi', passing the shore.
We saw the land quite clear. There was nothing in the night to cause
the least apprehension. We were about two or three miles to the
south of Dunman Head when I gave up the watch. The land was
quite clear ; the stars were shining. We were coasting within a mile
to three-quarters of a mile off the shore. I left the deck at a quarter
430 CASES BEFORE THE HIGH COURT
No. 68. before one. I' was on deck when we rounded Dunman Head. It was
Hend™son ^^^^ "^^^^ ^® passed it half a mile oflf. I am quite certain we were
and Others, not as near as two hundred yards. We were not within half a mile.
High Court. When I retired, John Williams, the second mate, released me. The
■'^"S- 30. captain was on deck. In my watch, he was on deck and below regu-
'- — larly, and I supposed also during the second mate's. We were then
nomfddt steering NN.W., a little to the south of Cromack Point. On round-
&o. ing Cromack Point, I would have altered the course to north by west,
and on clearing the point, I would have gone about north till I saw
the land off Portpatriek. I consider N. ^ W. a clear off-shore course.
I have frequently seen vessels a long way inside of us in passing. It
was Captain Henderson's practice never to put any east into his course
after passing Cromack Point — always keeping, if any thing, to the
west of north. We had rounded Dunman Head before I retired. I
saw nothing in the weather or course to mate me think there was any
danger. I have sailed with Captain Henderson since he commanded,
and always found him most attentive. His' cabin is close to the gang-
way, and I never found him on the sofa with his clothes off. It was
my opinion there was nothing to prevent the boats being launched, if
the seamen had had their way ; of course it was difficult, on account of
the crowd of passengers. I was below when she struck ; but was up
on deck immediately. There was great confusion and alarm. The
boats in the chocks were crowded. I saw Captain Henderson — he re-
tained his composure, and did all he could, as far as I saw, to save the
passengers. Captain Henderson and I were taken off the mast-head
the last of all. I was in the navy for some time. I have been on board
a great many ships in the navy, and I never saw the boats' plugs fastened.
I was on an expedition in which there was a great deal of boating, and I
never saw a plug fastened. If the plug had been in the boat, and people
baling out water, there was nothing to prevent it being baled out,
and, of course, it could not be found then. I was chief mate once be-
tween Hull and Hamburg. The captain took no watch. The boats'
plugs were not fast there. I kept the log of the Orion, which is pro-
duced. It says, ' 17th June, calm and hazy ; left Liverpool, 4.20 p.m.;
' Point of Ayre, 10.25 p.m. j Mull of Galloway, 12 midnight.' By
calm and hazy, I mean that the horizon was not distinctly visible. We
could see a long way notwithstanding. We saw the Isle of Man, I
suppose seven or eight miles off. At Dunman Head, it was quite clear,
and was as fine a night as I had seen on that passage.
By Mr Penney. — After passing Dunman Head, if we did not go
to the east of north, we thought ourselves on our own proper course.
If I, as mate, had, in the absence of the captain, not steered to the east
of north, I would have thought I was going right. It was understood
the mate had a discretion iu giving any course he thought proper while
on his watch, that is within the proper course generally. Variations
AND CIRCUIT COURTS OF JUSTICIARY. 431
in such a coasting course are always necessary, and it is not thought ^°- °^-
necessary to report them. I always found Williams a trustworthy, Henderson,
steady man, thoroughly acquainted with the coast. and Others.
Bi/ the Solicitor-General. — He had sailed eleven months in the High Court.
Orion, He was appointed by Captain Douglas. My appointment jgcQ '
came also from the company. I was sent to my duties by Captain —
Henderson. The last part of the log was written on my retiring. I Homicide,
sat up the whole of our passage from Liverpool. I intended to express *"•
by it that the weather had been calm and hazy all that time. I after-
wards extended the document, which bears to be the log of the Orion,
from separate notes.
The Solicitor-General. — You said it was not a copy of the log ;
will you just read it, and see if you don't call it a copy, and what is
your description of the weather there ?
Witness. — Monday, 17th, calm, hazy throughout; 4. 20 p.m.
sailed from Liverpool; passed the Point of Ayre 10.25 p.m.; Mull
of Galloway 12 midnight; Portpatrick 1.35 a.m.; about 1.40 ship
struck ^ mile north-west of lighthouse. ' The only difference is hazy
' throughout.' I am quite sure we were not within half-a-mile of
Dunman Head, nor to Cromack Point ; but we were nearer than usual.
Solicitor-General. — Were you much nearer than usual ?
Witness. — No, we were not much nearer.
Solicitor-General. — What is the usual distance ?
Witness. — Well, I can't say, but I have passed within a mile fre-
quently.
Bi/ the Court.— Then I understand you to say a mile is the usual
distance.
Solicitor-General. — 200 yards would be a very unusual distance.
Witness. — I can't say I have passed that distance — it would be ra-
ther near.
Solicitor-General. — Answer my -question.
Witness. — Yes, it would have been a very unusual distance. I
did not hear any remarks about our proximity to the shore, and there
was nothing whatever to excite apprehension. When I left the deck
we were steering NN.W. Before I went down, I was in the engine-
room. On coming up to retire, I stood some time looking at the land.
She had passed the point then, and was, according to compass, steer-
ing more to the eastward. I did not see Portpatrick light at that
time.
Daniel M'Kellar, examined hy Mr Penney. — I am the shipping
clerk at Liverpool, and make a note or memorandum of the goods
shipped, and it is from that note the manifest is afterwards made out.
I superintended the loading of the Orion. The manifest was lost.
The cargo was composed partly of light and partly of heavy goods.
We stored the heavy goods in the after-hold running to the stern, un-
432 CASES BEFORE THE HIGH COURT
No. 68. der the saloon. The lieighfc of the saloon is eight feet. Lumpers are
HendCTson employed in the stowage ; the captain and crew have nothing to do
and Others, with it. There was shipped about eight tons of iron — sheet and plate
High Court. — hardware, nails, machinery, and steel , and that was stowed in the
^ifso"* after-hold. I am not aware if any rod iron was shipped on the occa^
— sion.
Hom^ide, WiLLiAM FiNLAY JoHNSTON, clerk- to the Messrs Burns, owners of
&<=. the Orion. — I was sent to Portpatrick after the loss, to superintend
the recovery of the cargo. The divers employed brought up a quantity
of iron from the after-hold. It was sheet iron j also, hardware, and
some bags of nails. There was some rod iron brought from the star-
board side of the deck. The sheets of iron were broad.
By Mr Bell. — The divers brought it np from the starboard side,
their hose was not of sufficient length to admit of their going to the
other side, when down.
Alex. Moore. — I am in the employment of Mr M'Lure, Portpa-
trick, who purchased the wreck of the Orion. I remember after that
purchase, that a quantity of iron was brought up in sheets, 11 and 12
feet long, and 4 feet broad.
Wm. Hatchard. — I was engaged for some time with Mr Cooke,
one of the inventors of the Electric Telegraph, and agent for the Elec-
tric Telegraph Company. I had occasion to make a good many mag-
netic experiments, and have become acquainted with disturbing influ-
ences on the needle ; the effect of iron on the compass. I was requested
to make certain experiments by parties connected with the owners of
the Orion. I made these experiments along with Mr Edwin Clark.
The greatest quantity of iron we used was between six and seven tons,
and placed at distances from 1 2 to 20 feet from the compass in sepa-
rate stores, the compasses being placed in the upper floor of the build-
ing and the iron in the lower. Everything else was removed. We
used plate iron, and also a certain quantity of nails. The inference I
formed as to the effect of 23 cwt. of iron was, that that quantity, placed
at a distance of 12 feet, deflected that compass fully two degrees. We
did not use bar iron, but I think it would have had a considerable ef-
fect in the same manner, A larger quantity would have produced a
larger deflection.
By Mr Bell. — The house was not built of iron. I subsequently
made experiments on iron steamers at sea, but the effect was the same.
I placed a small pocket compass which I had with me, in proximity
to a bar of iron, and found it was considerably affected. I did not
protect that compass by magnets all round, as is usually done in iron
steamers.
Edwin Clark.— I have been for several years engaged with Mr
Stephenson in the operations of the Britannia Bridge, and am now en-
gaged with Mr Cooke in the Electric Telegraph Company. I*hav0
&c.
AND CIRCUIT COURTS OF JUSTICIARY. 433
made certain experiments with Mr Hatchard. These experiments were ^^^^^
eonducted with the greatest possible care. Henderson,
Walter Douglas, examined by Mr Logan. — I am marine super- "-nd Others.
intendent of the Messrs Burns; in which capacity it is my duty to High Court,
take a general superintendence of all the ships. Captain Henderson ] 350. '
was appointed by Messrs Burns out of numerous candidates for the Culpable
office. Before he was appointed, various inquiries were made — among Homicide,
others, of the owners of an East Indiaman. called the Glen Swilly.
When he was appointed, it was my opinion he was decidedly the best
man among the applicants. During the nine months he commanded
the Orion, he completely confirmed my opinion. It struck me, besides
conducting his vessel properly, he was a cautious person. On board
the company's steamers, there were two nates. The watches were
kept By the first and second mates. No watch was ever given to the
captain. That system was observed in all the company's vessels be-
sides the Orion. It was known and approved of by me as their super-
intendent. The life-boats of sea-going steamers are generally covered
over in the same way as those of the Orion, to protect them from the
weather and the. sea. If struck heavily, she might be carried away in
a heavy sea and lost. In the Cunard line the boats are covered in the
same manner. I never heard of a life-boat covered when in harbour,
and exposed when on the voyage. It would frustrate the object of
covers, to expose her both to the sea and sun. The plugs in the boats
I never saw fastened in the merchant service. They are kept in the
locker or stem-sheets ; and seamen have a particular fondness of see-
ing the plugs lying about. I approved of the spray cloth at the bottom
of the boats to protect the steerage passengers. I don't think it would
form any impediment to the launching of the boat. I was once sail-
ing-master in the Gulnare Government steamer — Captain Bayfield.
Observations were made as to the deflection of the magnetic needle,
and from these I came to the conclusion that iron in the hold would
influence the binnacle compasses, especially if upon deck. I remember
the loss of a ship in the St Lawrence was attributed to an immense
quantity of iron of which her cargo was formed.
By the Court. — The efiect was to take the vessel out of her course,
and bring it to an unexpected place.
Andkew Small, sailmaker. — In February last I made the covers
for the boats of the Orion, and also the spray cloth. I was applied to
to make the model of the boats of the Orion, with their covers, but I
made it by no scale. The cover on the model was as near as possible
the same sort of stuflTas the original. Before I was done with it, it
was painted five or six times, which had the effect of stiffening it.
When I was a commander at sea I made the covers for my own boats,
and, since I became sailmaker, have been frequently employed to make
covers' for steamers. I studied to make the fastenings as easily re-
434 CASES BEFORE THE HIGH COURT
No. 68. movable as possible. Those of the Orion were made exactly as those
Henderson, of other steamers. I don't think the spray-cloth would form any im-
and Others, pediment in launching.
High Court. By the Solicitor -General. — I would cut the fastenings of the
1 850. * canvass in an emergency. I don't think they can be made in a more
-T—j — — — suitable manner. Supposing a knife was not at hand at the time, I
Homicide, could, '^vitbout assistance, take it off in a minute or a minute and a half.
*"'• By the Court. — The Orion was supplied with covers before I sup-
plied her.
By the Solicitor-General. — I have never unlaced those on board
the Orion, but have done so in my own ship.
By Mr Logan. — A sailor without a knife would be like a sailor
without a blue jacket, he "would be of little use.
Datid Ckoall. — I was at one time a carpenter on board the Orion,
and was so from the time she was launched till a fortnight before she
was lost. The life-boats in this model are rather too deep and too
broad, and being covered with stuff nearly as thick as the original,
gives a false impression. The model ought to have been made to a scale,
The Orion boats had covers from the first, and laced under the keel. '
They were so handed over to Captain Henderson. Some time after
his appointment he gave me instructions to fasten a spray cloth. The
fastening was kept well greased, to facilitate its removal. But sup-
posing, in a hurry, it was not detached, it would have offered no im-
pediment to the launching of the boats, as it would have torn it at once.
The davits worked the same way in Captain Henderson's time as in
Captain Main's. The screw nail in the bottom would be no impedi-
ment to her being swung out, for the first pull at the davits would have
taken it away.
George Aird. — Was a seaman on board the Orion when she was
lost. I went ashore in the larboard quarter boat. No plug was found
in her. On our Way out we looked for the boat-plugs, and found two
in the beltings of the boat. We afterwards took out a cork and put
in the plug. I found it covered with paint of the same colour as the
boat. Langlands was in the habit of having them regularly oiled.
By the Solicitor-General. — I was on deck when the vessel
struck.
C. N'Neely. — Was a seaman on board the Orion when lost. On
getting ashore with the larboard boat, we baled her with hats. In do-
ing so, we found two plugs in the usual place. No seaman would
ever dream of taking them out of the boat. When at Liverpool, the
oars had been scraped and cleaned, and were lying on the deck after
we left. I heard the mate giving orders to have them put in the
boats.
Hugh Main. — I have been a captain of Liverpool steamers for 20
AND CIRCUIT COURTS OP JUSTICIARY, 435
•years ; and was some time master of the Orion. Williams was a good No. 68;
•' . , ^. Thomas
seaman, attentive and cautious. Henderson,
Btf the Court. — He was second mate 2^ years. - "■"•I Others.
Bi/ the Solicitor-General.— We kept in-sbore according to the HighCom-t.
weather — sometimes at a distance of half a mile. The second watch is j|en
sometimes called the captain's watch ; as in small vessels where there
is no second mate, it is usual for the master to take the watch with the jiomioide
mate. If there had been a fog at the Mull of Galloway, I would not be-
have gone below. In clear weather, I did sometimes. I was in the
habit of sleeping during the second mate's watch in fine weather some-
times.
By Mr Crawford.— I have known Captain Henderson, and think
him a fine'steady seaman. If you had a fine calm night, with a second
mate in whom I had confidence in charge, I would, if it was a clear
night, have no hesitation in taking a little rest. The course we ge-
nerally took from Dunman Head was to steer N. ^ E., and then to
edge her off to N. ^ W. We usually passed about a mile off Portpa-
trick and Blackhead.
Examination resumed hy tlie Court. — If the light is made two
miles off in a fine night, and the vessel answer her helm, there is no
reason whatever to suppose that the vessel could not be kept off the
shore. I had no instructions from the owners ; but I don't consider I
am responsible for my oflScers when I am in bed.
This closed the case.
The Solicttor-Geneeal addressed the Jury on behalf
of the Crown, and contended, that the facts proved estab-
lished the guilt of the mate, who was in charge of the
vessel at the time of the accident, and that the captain
had been guilty of the charges laid against him, in respect
of his having committed the vessel to the care of a sub-
ordinate officer, when near the shore, without any neces-
sity for his so doing, and was, therefore, answerable for
the unskilfulness of the officer to whom, under such cir-
cumstances, he had committed her.
The Lord Justice-Clerk intimated to the counsel for
the pannels, that the Court did not intend to direct the
Jury that any case had been sufficiently made out with
respect to the charge regarding the boats.
Penney, on behalf of the mate Williams, contended,
that the accident appeared to have been occasioned by
causes over which be had no control of, or which, at any
436 CASES BEFORE THE HIGH COURT
Thomas ^^^^> ^e was not criminally responsible. The deflection
^nTotrers' °^ the compass by which he steered was sufficient to
High Court account for the orders he gave, more especially as it did
"^1850° "°* appear that he received the ship's manifest, or was
c^]^^^]^ acquainted with the position of the iron, which was part
Homicide, of the cargo, and which accounted for the deflection
which had been proved.
Craufurd, on behalf of the captain, said, it was set-
tled law, that a party was not criminally responsible
except for his own act, and it was sufficient to exoner a
person otherways responsible, if, having delegated his own
superintendence, he had done so to a competent person.
Case of Kirkpatrick, Dumfries, Sept. 1840, Bell's Notes,
p. 71 ; Drysdale, High Court, March 13, 1848, Arkley,
p. 440. No doubt a person might be criminally respdn-
sible if he devolved his own duty on one who was not
qualified for its due discharge, such devolution being
criminal in itself. In this case there had been no such
improper delegation of duty, as the mate was an officer
selected by the Company for the express purpose of tak-
ing charge of the vessel in the absence of the captain,
and was known by his employers to be in the habit of
so doing. Again, there was nothing proved against the
captain to show that at the time he left the deck the
vessel was in circumstances of any danger. He was
entitled to have believed that his directions to keep to
the westward would be observed, and this the more espe-
cially as the coast was more or less visible. The greater
the recklessness of the mate in disregarding the intima-
tions of the nearness of the shore, went to exoner the
captain, who could not calculate on such disobedience
to his own orders, and of such unskilful seamanship on
the part of an officer chosen for that purpose by the
Company, and who was not shewn to have evinced reck-
lessness or unskilfiilness on former occasions. It was
quite certain, that, so far from giving directions which,
being followed out, carried the vessel on the rock,' that
the master had given other directions, which would have
AND CIRCUIT COURTS OF JUSTICIARY. 437 ■
saved her, and he having done nothing which directly r^^^^s
contributed to the accident, the Jury could not convict Henderson,
' and Others.
him for the crime charged, in respect of the lamentable ^. j^^ourt
result, which, if occasioned by the criminal act of any Aug. so.
one, was so by the conduct of that of the mate, for whom, — - — '—
■' Culpable
under the circumstances, he was not responsible. Homicide,
&c
The LoED Justice-Clerk, in charging the Jury, ob-
served, that, as had been remarked in many cases, there
was really no difference between the crime of culpable
homicide and culpable and reckless neglect of duty
which resulted in the loss of life, and the Jury must
therefore, under either charge, consider the case as one
of culpable homicide. Intention to do wrong was no
part of the crime of culpable homicide ; if intention
was proved under such a charge, it would amount
to murder. The crime of culpable homicide was com-
mitted whenever a person unintentionally committed an
act whereby the life of another was lost, or where he
failed to perform his duty when charged with the pre-
servation of life, without having a sufficient excuse for
such neglect, and life was lost in consequence ; and it
was the wish of the Court to express this the more
strongly, as they were of opinion that the introduction
of two charges, amounting, in law, to the same offence,
under circumstances such as those which had been
pfoved in the course of this investigation, was inex-
pedient, as tending to distract and confuse the minds of
the Jury.
The principles of law the Court was bound to lay down
to the Jury, had been much considered in recent cases,
particularly that of Paton and M'Nab, November 1845,
Broun, vol. ii., p. 515, and it consisted in this, — ' That
' any person placed in a situation in which his acts may
' affect the safety of others, must take all precautions
' to guard against the risk to them arising from what he
' is doing.' That would also be found to be the prin-
ciple adopted and enforced by the Court in the cases
referred to by the counsel for the pannel Henderson,
&c.
438 CASES BEFORE THE HIGH COURT
Tii°omM *^°"g^^» ^^ doubt, exceptional expressions might be found
Henderson, in almost evoty case, occasioned by the peculiarity of the
Hi h Court ^^^^^ proved at the trial. The Jury thus must take into
Aug. 30. ■ consideration the whole indictment, as forming one sub-
'- — stantive charge ; and on the proof which had been ad-
Homicide, ducod, they would consider whether it was sufficient to
establish the charge which had been preferred against
the pannels respectively. It was unnecessary that the
pannels should be guilty, to the same extent, of cul-
pable neglect of duty, which occasioned loss of life.
There might be innumerable degrees of guilt incurred
under such a charge, occasioned not merely by the
amount of recklessness displayed, but by the amount of
duty and responsibility which the party had undertaken.
The principle, however, being, as before stated, that a
party charged with the care of life, was bound to exer-
cise to the utmost extent all the caution and care within
his power, such an occurrence as ' that before the
Jury, where a vessel was shown to have been sailing
for a long distance unusually near shore, and at length,
immediately after seeing Portpatrick Harbour light, con-
tinuing the same course until the vessel was struck on a
well-known rock, on a calm and comparatively clear
night, threw on those on whom her management depended,
the omfs of shewing respectively that they had done
everything within their power to prevent the occurrence
of such a catastrophe. No doubt the guilt might arise
from totally different circumstances — ^that of the captain
— from improperly leaving his, vessel in charge of the
second mate ; whilst that of the mate might arise from
the manner in which he exercised the trust reposed in
him; but though the circumstances which tended to
establish the charge might be totally different, that would
not affect the question as to whether both could be con-
victed under the indictment. It was not a relevant
defence for the captain to say, that the mate had navi-
gated the vessel in a more careless and reckless manner
than usual, if he, the captain, was not justified in com-
AND CIRCUIT COURTS OF JUSTICIARY. 439
mitting her to the care of tke mate at all. On the other ^o. es^
hand, it would equally be no defence to the mate to say, Henderson,
and Others.
that the captain having improperly committed the vessel
11 1 11 1 High Court.
to his care, he had so completely neglected the charge Aug. 30.
he had undertaken, as, after repeated warnings, to run —
on shore by a course of reckless navigation, whereby the HonScide,
vessel was wrecked, and large loss of life occasioned. "'
The Jury would consider the facts under reference to the
libel, and see whether or no there was charged against
the pannels neglect of duty of that distinct species which
has been proved as affecting each, as it would not do to
convict them on belief that there was some other duty,
not charged in the libel, which had been neglected by
either or both of them, the observance of which might
have averted the catastrophe.
The duty of the party entrusted with the care of life
must necessarily vary according to circumstances, and the
capability of ordinary endurance for its discharge ; thus,
it could not be contended that a person in command of
a ship sailing to a distant port, through open seas, was
bound to exercise, or could by possibility exercise, the
same amount of endurance and watchfulness in the ma-
nagement of the vessel which a captain on a short course,
and especially on a coasting voyage, would be bound to
exercise, any more than it could be contended that there
was no difference in the amount of watchfulness required
by the captain in a vessel at sea, whether the weather
was calm or tempestuous. The responsibility of each
voyage was much affected by the character of the voyage
itself, the weather in which it was performed, and the
ordinary physical capacity of a healthy man to perform
the duties he undertook to discharge. It was a common
remark, that persons circumstanced as Captain Henderson
was would be sure to take every known precaution to avert
danger from himself; and it had been strongly. urged by
his counsel thstt he had done nothing on the occasion of
the accident different from what was done according to
the practice of all captains on that navigation. If, how-
2f
440 CASES BEFORE TOE IIIGH„COURT
No. 68. ever, the Jury were of opinion that there was culpable
Thomas ' j r
Hender:<on, neglect of duty in what he did, that it was not necessary
^" for him to retire to rest at the period in question, and
Aug. 30. ■ that there was culpable neglect of duty in leaving his
— ^-^— post, it was no answer in law for him to say that others
Homicide, had been in the practice of committing the like wrong.
*"■ Nothing could be more mischievous than such a doctrine,
as it was the occasion of almost all like accidents. Men
became accustomed to perils, and daily became more
and more daring and rash in the exercise of their avoca-
tions ; and it surely was no answer when at length the
danger which had been so often run, resulted in the death
of some fifty beings, to urge that hundreds daily before had
been in danger by a course of like reckless conduct. It was
much to be feared that captains often ran close to the shore
to avoid currents and tides, in order to save time ; and
having escaped disasters on repeated occasions by such
courses, they become over confident, and at length adopt
a course which at first they would have thought it insane
to attempt. That was the great occasion of accidents of
all kinds; but the leading principle to be adopted in
judging of such cases, was not how near the coast a cap-
tain might venture without danger, but how far off he
ought to keep in order to avoid all risk whatsoever: and,
as before mentioned, it was incumbent on the captain to
shew that he had not authorised a course to be followed
within which there was any risk ; as also, that he had
not improperly delegated his charge to the mate, before in
law the Jury would be entitled to acquit him of blame
for the accident which had occurred.
It was in evidence that there was no division of labour,
or trust, by the employers, between the captain and the
mate, and more especially there was none as between
captain and second mate. There was thus a delegation
of duty by the captain to an inferior officer, which if un-
warranted in itself, could not be justified by any instruc-
tions in the ^ervice. This took place in a voyage which,
on ordinary occasions, did not exceed 15 hours, and which.
AND CIRCUIT COURTS OF JUSTICIARY. 44.1
on the occasion in question, commenced at Liverpool at ^^'j'j^^.^-
4 o'clock in the afternoon of a beautiful summer day, Henderson,
-_ 11 and Others.
when the vessel was steered down the Mersey by the —rr-^-r
, High Court
river pilot, thus, for that portion of the voyage, lessemng Aug. so.
the captain's responsibility. Could it be said, then, that ^ J^^
the captain was not bound to have started fresh from Homicide,
Liverpool, so as to have enabled him to remain on watch
during so short and easy a voyage. It was qyite differ-
ent, as before stated, from the case of captains out at sea.
It was not pretended that the captain's duties required
him to superintend the loading of the vessel, and this still
farther left him without excuse on the score of physical
inability to maintain the watch throughout the night.
It had been urged that the course kept by the Orion
from the Mull of Gralloway northwards, on the night of
the accident, was pretty ipuch the same as that observed
usually by steamers trading between Liverpool and Glas-
gow. No doubt companies were anxious to make quick
voyages for the sake of profit, and captains were anxious
to please their employers by performing the passage as
quickly as possible. The evidence as to this was some-
what contradictory (which his Lordship read), but the
fair import of the whole seemed to be, that they were
much nearer the coast during the whole course than usual.
If the Jury thought that such was the case, it bore
upon the captain in two ways, Jirst, in respect of having
sanctioned a course so near the shore, as he was shewn
to have been on deck long after passing the Mull of
Galloway. And, second, in having committed, under
such circumstances, the charge of the vessel to another.
It had been said that there was nothing more than
error in judgment attributable to him. That he did
err in judgment was undoubted, as, before mentioned, had
his conduct been intentional, to produce the disaster
which occurred, his crime would have been that of
murder. The 'question was, did he, charged with the
care of a vessel containing so many passengers, culpably
leave her to the care of another, by whose mismanagment
442 CASES BEFORE THE HIGH COURT
No. 68. the wreck was occasioned ? Honesty of intention, and
Til maa n i • i j • j i
Henderson, anxiety to serve the interests of his employers, did not
- — —' form a justification even for directing or sanctioning a
Hidi Court. . , tx- • i j. j
Aug. 30. course so near in-shore. His primary duty, and one
l^ — which no commands from the Company could absolve
Uomfcide, him from, although it might render them guilty in re-
'*''■ spect of having issued them, in case of their directing so
unsafe a passage, was to preserve the lives of the passen-
gers who sailed in his ship ; and on the whole matter the
Jury would have to say, as regarded the captain, whether
or not he had been guilty of the culpable and reckless
neglect of duty charged, either by directing or sanctioning
an unsafe course, or by having unnecessarily and culpably
delegated his duty to the mate.
As before mentioned, the Crown having proved the acci-
dent to have occurred under his command, it fell on him to
prove that he was entirely innocent in both respects. If
the Jury thought he was culpable in any degree, in respect
of the matters charged in the indictment, they were bound
to find him guilty, leaving the question of punishment for
the determination of the Court, who would consider
the amount of guilt. As regarded the case of the mate,
the case that had been principally made for him, as to the
deflection of the binnacle compass, entirely failed. It
was proved, beyond doubt, that the land was visible the
whole way from the Mull of Galloway northwards. It
was in vain, therefore, to talk of a deflection of the com-
pass on a coast so well known as that of Wigtonshire ;
and the Jury would consider whether or not it was con-
sistent with innocence that he did not keep farther out
at sea, when the land within sight was a rocky shore,
more especially after receiving warnings from the sea-
men who were on the watch, and who admonished him of
the fact ; and more especially after passing so close to
Portpatrick harbour, the light of which was seen and re-
cognised. Had he called the captain, when he perceived
himself so near the shore, and had the latter sanctioned
the course which the mate was then following, the mate
AND CIRCUIT COURTS OF JUSTICIARY. 443
might have been as much relieved as was the steersman, Thomas
who obeyed his, Williams', orders. Nothing of the kind, f J^^r"!
however, was shewn to have been done by him, and the HighCom-t.
Jury would say, having regard to the doctrines of law {fjo. "
laid down in the case of the captain, whether the mate "cuipabie
could be held entirely innocent of the neglect of duty °&c' ^'
charged, so as to enable them to acquit him.
His Lordship also remarked, in reference to the case
of the boats, that although the Court thought that there
was not enough to warrant the Jury in convicting, in "re-
spect of neglect of duty as to them, yet the facts proved,
and the lamentable results which had happened from
the state in which the boats were at the time of the
accident, and their original construction, was most
important, as shewing the consequences of inefficient
boats in the case of accidents. Should it be found, on
any future occasion, that life was lost in consequence of
inability to launch or navigate the boats, arising from
such impediments as the coverings which had been spoken
to in this case, or any other device resorted to for the
purposes of economy, either of the boats themselves or
the vessel to which they belonged, grave criminal re-
sponsibility would arise, as well to the captain who ne-
glected to use all appliances in his power to keep them
in proper order, or the proprietor who should fail to have
supplied sufficient boats in the first instance, or refused
proper allowance to have them maintained.
His Lordship then recapitulated the evidence, after
which the Jury retired for half-an-hour, and, by a majo-
rity, found the captain guilty of culpable, but not reckless
neglect of duty ; and unanimously found the pannel
Williams guilty of culpable and reckjess neglect of duty
as libelled ; and unanimously found both pannels not
guilty of the first and third charges as libelled.
Lord Wood then proposed sentence. He said, — My
Lord Justice-Clerk, we have now arrived at that stage of
the proceedings of this most interesting and anxious trial,
when it becomes our duty, and a most painful duty it
&c.
444 CASES BEFORE THE HIGH COUllT
No. 98. ig to consider and determine what sentence it is for us to
Thomas
HendersoD, pass On the verdict that has been returned by the Jury.
and Others. '^ • i /
g— -7; — Your Lordship has already explained that, in truth, the
Aug. 29. two iirst charges are one and the same, the words of the
^ verdict applying more strictly, perhaps, to the second
Homicide, charge than to the first — namely, ' culpable and reckless
' neglect of duty by any officer or mariner employed in
' the navigation of a ship, whereby the ship is wrecked,
' and many of the lieges are bereaved of life.' That is a
statement of a particular description of culpable homicide
which is charged in the indictment, and what follows is
a statement of the special case of the circumstances un-
der which the vessel, the Orion, was wrecked. The
Orion left Liverpool on the I7th of the month of June,
a fine vessel, one of the finest in the trade, a vessel fully
equipped for the voyage, having on board, at the time,
a valuable cargOj and no less than 200 people, consisting
of crew and passengers ; and she was a vessel with a
steam-engine of great power, and capable of being pro-
pelled at the rate of fourteen or fifteen knots an hour.
When such a vessel, with such a cargo, and with so many
persons on board, left the port of Liverpool, it appears
to me, that every man who had any charge in the navi-
gation of her, should have left it with the thought in-
delibly impressed on his mind, that no vigilance, no care,
and no anxiety which he could bestow in the navigating
of the vessel to her port of destination, should be awant-
ing.
Your Lordship emphatically stated that it was the
paramount duty of every one navigating such vessels,
to consider, first, the safety of the ship and passen-
gers. The contrary course appears to have been fol-
lowed here. The captain chose a coasting course,
apparently trying what peril the vessel could be put
into, and yet bring her safe to her port of destina-
tion, instead of his thinking only how he could carry her
there in safety. And carried in safety she might have
been, for it was a clear course — a known course it
AND CIRCUIT COURTS OF JUSTICIARY. 445
was an accustomed voyage — and she was under the charge ^^^^l^
of those who knew every part of the voyage. Now, my Henderson
•'■' ; 1/. I 1 and Others.
Lords, in these circumstances, the Jury have found, by a grj-^ — -
majority, Henderson, the master, guilty of culpable ne- Aug.
.30,
IR.l
gleet of duty, as libelled, under the second charge ; and
Culpable
they have unanimously found Williams guilty under the Homicide.
second charge as libelled ; and both prisoners not guilty,
as libelled, on the third charge. The prisoner, John Wil-
liams, has been found guilty of culpable and reckless ne-
glect of duty in navigating this vessel, by which neglect
the vessel was wrecked, and that melancholy loss of life
charged in the indictment occasioned. I am sorry to
say, that I feel it impossible, with such a verdict, in such
a case, to propose any other sentence than one of seven
year's transportation. Any other sentence would be
an inadequate one, and would neither satisfy the law
nor the great interests at stake. But we are enabled,
and I am most happy, by the verdict, to make a dis-
tinction, in the amount of punishment, between the
mate, Williams, and the master, Henderson, because
the Jury, in his case, have found him only guilty of
culpable neglect of duty, and not of reckless, as well
as culpable neglect of duty ; and, certainly, it is a very
material difference in the verdict with regard to him.
If the verdict had included in it recklessness on his part,
of course there could have been no other sentence than
one of transportation ; but I feel, as every one must feel,
that, in dealing with the case of a person such as the
master of this vessel, no sentence which the law could
pronounce would make any impression unless it was one
that would bear severely on him.
In these circumstances, making every allowance for
the distinction which the verdict admits of in the case
of the parties, and by every consideration which I
have been able to bring to mind, and I have every de-
sire to make such a distinction in the case as is consis-
tent with the ends of justice, I have, after much con-
sideration, come to the conclusion, that the sentence may
446 CASES BEFORE THE HIGH COURT
No. 68. |je mitigated to one of imprisonment, althougli it must
Henderson be ono of time, and such a sentence, as tliose in charge
-^ of such vessels must feel that, for the very slightest ne-
Aug. 30. gleet of duty, which is followed by so disastrous results
'. — as occurred in this case, and even far less, they must
Hoimcide, auswcr to the law. I therefore propose a sentence of
*"^- imprisonment for eighteen calendar months.
Lord Ivory and the Lord Justice-Clerk concurred.
In respect of the before mentioned verdict of assize,
the pannel Henderson was sentenced to eighteen months'
imprisonment, and the pannel Williams to be transported
for the period of seven years.
AND CIROUIT COURTS OF JUSTICIARY. 447
NORTH CIRCUIT.
(From the late Lord Moncre'iff's MS.)
PERTH.
, „ ,-, July 28.
Judges — Lords Monoriefp and Lockbuhn. lg50_
Heb Majesty's Advocate — E. F. Maidand, A.D.
AGAINST
James Robertson — Millar.
Declaration — Evidence. — Circumstances in which it was held com-
petent to prove by parole, that the actual date of a declaration was
different from that which was inserted in the preamble or title as the
date at which it had been emitted.
James Robertson was accused of Murder : No. 69.
James
Robertson.
In so ear as, Jean Duguid, now or lately residing with Charles — — — j —
Duguid, labourer, now or lately residing at or near Woodside of Inglis- juiy 28.
maldy, in the parish of Marykirt, and shire of Kincardine, having ^850.
been, on or about the 3d day of December 1847, delivered of a female Murder,
child, of which you the said James Robertson was the father, or re-
puted father, and you the said James Robertson having, on the 24th
day of December 1847, or on one or other of the days of that month,
or of November immediately preceding, or of January immediately fol-
lowing, in or near the house on or near the farm of Unthank, in the
parish of Brechin, and shire of Forfar, then and now or lately occupied
by William Norie, then and now or lately farm-servant in the employ-
ment of James Deuchar, farmer, then and now or lately residing at or
near the farm of Unthank aforesaid, got possession of the said child,
or received the same into your charge and custody, the said child hav-
ing no name, or some name to the prosecutor unknown, you the said
James Robertson, time last above libelled, at or near the said house on
or near the farm of Unthank aforesaid, then and now or lately occu-
piAti by the said William Norie, and on or near the said farm of Un-
thank, in the parish of Brechin, and shire of Forfar, then and now or
lately occupied by the said James Deuchar, and on or near the farm of
Cookston, in the parish of Brechin, and shire of Forfar, then and now
or lately occupied by Walter Brodie, farmer there, and then and now
or lately residing there, and on or near that part of the public road
2g
44S CASES BEFORE THE HIGH COURT
No. 69. leading from the towu of Brechin, in the shire of Forfar, towards Little
Robertson Brechin, iu the parish of Brechin, and shire of Forfar, which passes
p , through or near to the said farm of Cookston, and on or near the farm
July 28. of Masondieu, in the parish of Brechin, and shire of Forfar, then and
^^^^- now or lately occupied by Alexander Guthrie, farmer there, and then
Murder, and now or lately residing there, and on or near the farm of East Pit-
tendriech, in the parish of Brechin, and shire of Forfar, then and now
or lately occupied by Robert Scott, farmer there, and then and now or
lately residing there, and on or near the farm of West Pittendriech, in
the parish of Brechin, and shire of Forfar, then and now or lately oc-
cupied by George Duncan, farmer there, and then and now or lately
residing there, and on or near the farm of Broomfield, in the parish of
Brechin, and shire of Forfar, then and now or lately occupied by Wal-
ter Ogilvy, farmer, then and now or lately residing in or near Brechin
.aforesaid, and on or near the farm of Findowrie, in the parish of
Brechin, and shire of Forfar, then and now or lately occupied by James
Thomson, farmer, then and now or lately residing there, and on or
near that part of the accommodation or other road which leads from
at or near the farm-houses upon the said farms of East Pittendriech
and West Pittendriech, towards the Trinity Muir, in the parish of
Brechin, and shire of Forfar, which is adjoining or near to the said
farms of Cookston, Masondieu, and East Pittendriech, or one or more
of them, and on or near that part of the accommodation or other road
leading from at or near the said farm-houses upon the said farms of
East Pittendriech and West Pittendriech, towards a school-house at
or near Little Brechin aforesaid, which is adjoining or near to the said
farms of East Pittendriech and West Pittendriech, and on or near that
part of the public road leading from the town of Brechin aforesaid,
towards the parishes of Wfenmuir and Fearn, in the shire of Forfar,
which is adjoining or near to the said farms of West Pittendriech,
Broomfield, and Findowrie, or at or near one or more of said places,
the particular place or places being to the prosecutor unknown, or at
some other time and place or places in or near the parish of Brechin,
and in the shire of Forfar, to the prosecutor unknown, did, wickedly
and feloniously, attack and assault the said child, and did roll or put
the clothes, or part of them, which were then upon or about the per-
son of the said child, over her head or face, in order to prevent her
from breathing, and with intent thereby to suffocate her, and did keep
the head or face of the said child so covered by the said clothes, and
did thereby prevent her from breathing, until she was thus, or in some
other way to the prosecutor unknown, suffocated by you the said
James Robertson j and, in consequence thereof, the said child, imme-
diately or soon thereafter died, and the said child was thus murdered
by you the said James Robertson.
This was a case of Child Murder, and the indictment,
AND CIRCUIT COURTS OP JUSTICIARY. 449
after the usual narrative of the circumstances in which No. 68.
the offence was alleged to have been committed, referred nobertson.
to the prisoner's declarations in the following terms : — Perth.
July 28.
And you the said James Eobertson having been apprehended and IBSO.
taken before "William Duncan, Esquire, senior bailie of Brechin, "Miicderr
and one of Her Majesty's Justices of the Peace for the shire of
Forfar, did, in his presence at Brechin, on the 6th day of March
1848, emit and subscribe a declaration : And you the said James
Eobertson having been thereafter taken before Andrew Robertson,
Esquire, sheriflf-substitute of the shire of Forfar, did, in his pre-
sence at Forfar, on the lOth day of March 1848, emit and subscribe a
(Jficlaration, which, by a clerical error, bears at its commencement the
date ' At Forfar the tenth day of March Eighteen hundred and forty-
' seven :' Which Declarations ; As also, a shawl, a frock, a shift, a cap,
a piece of plaiding cloth, and three pieces of cotton cloth, to which a
sealed label is attached ; As also, a petticoat, a swaddling band, a shift
or barry, two pieces of plaiding cloth, a shift, three caps, a slip, a piece
of cotton cloth and a frock, to which a sealed label is attached ; As
also, a shawl, to which a sealed label is attached ; As also, a tartan
shawl, to which a sealed label is attached ; As also, a letter, bearing to
be dated ' Findowrie December 19*'" 1847,' and to be signed ' James
' Robertson,' with an envelope, bearing to be addressed ' Mr Charles
' Duguid Inglismaldy By North water Bridge,' to which a sealed label
is attached ; As also, a letter, bearing to be dated ' Findoury Feb IS'l"
' 1848,' and to be signed 'J. Robertson,' with an envelope, bearing to
be addressed ' Alexander Duiguid Louthermuir By Inglismaldy,' to
which a sealed label is attached ; As also, a letter, bearing to be dated
' Brechin 24 February 1848,' and to be signed ' R. Mathers,' and to
be addressed ' Mr James Robertson Farm Servant Findowry ;' As also,
a letter, bearing to be dated ' Findoury Feb 28* 1848,' and to be signed
' James Robertson,' with an envelope bearing to be addressed ' Jean
' Duguid luglesmaldy By Montrose,' or having some similar address,
to which a sealed label is attached ; As also, a medical- report or cer-
tificate, bearing to be dated ' Brechin 7"^ March 1848,' and to be signed
' Alex Smith M.D.,' ' John Mackie Surgeon,' being to be used in evi-
dence against you the said James Robertson at your trial, will, for that
purpose, be in due time lodged in the hands of the Clerk of the Circuit-
court of Justiciary before which you are to be tried, that you may have
an opportunity of seeing the same.
MiLLAE, before the interlocutor of relevancy was pro-
nounced, objected to the indictment, on the ground that
the prosecutor there disclosed an intention to controvert
the tenor of a written instrument by parole proof, a
course which it was incompetent to pursue.
450
CASES BEFORE THE HIGH COURT
Perth.
July 28.
1850.
Murder.
No. 69. He was aware that the objection might have been re-
Robertson, served till a later stage of the proceedings, but the pre-
sent was, on the whole, the most convenient time for the
discussion, because it would be in the power of the
Court, in case they should think further enquiry neces-
sary, to certify the case to the High Court upon the
point. There were precedents for the statement of such
an objection at the outset. Williamson, 2 Broun, p. 50 1 ;
and Gorrie, 1 Swinton, p. 175.
The objection to the course the prosecutor meant to
pursue, was important, not to the prisoner only, but to the
law ; for it involved the general question, whether the
tenor of a written instrument could be redargued by pa-
role ? A declaration is the authentic record of a parti-
cular procedure, which the prosecutor conducts for the
ends of justice ; and the prisoner is invited to depone,
upon the implied assurance that what is written shall
remain the evidence of all which occurs at his examina-
tion. This could hardly be controverted. Here, the pro-
position applied to the portion of the instrument which
embodies the answers of the prisoner to the questions put
to him ; and accordingly, the distinction which is made is,
that the preamble or title, in which the date of a decla-
ration is mentioned, is not an essential portion of the in-
strument, but merely a preliminary narrative, which is
prefixed for the sake of conveniency. For this view of
the matter, however, there was not authority ; and it was
one which the Court would be loath to countenance.
The declaration was a mium quid ; it could not be di-
vided into parts, one of which was to be regarded as
material, and the other as unimportant. In its character
it was an actus legitimus, and must, to be effectual, em-
body every particular, the mention of which \^as essen-
tial to authenticity. Of these, surely the date was one
of the most obvious. Could it be said that the time
when a declaration was emitted was immaterial ? The
fact that every declaration opens with a statement of the
time it was emitted, proves the contrary. But, if the
AND CIRCUIT COURTS OF JUSTICIARY. 451
date is material, if it is an essential part of the instru- No. 69.
■^ James
ment, why should it be liable to be controverted more Robertson.
than any other portion ? There is a plain reason why Perth.
parole should be excluded from conflict with the written ]85o. '
record of the date. Memory as to time is proverbially Murder.
treacherous ; and were oral testimony to be permitted to
overbear a solemn written attestation upon such a point,
the effect would be to blot out the best evidence, in
order to introduce the worst.
These views were not only reasonable in themselves,
but were supported by different authorities in the law.
He quoted Burnet, p. 493 ; Hume, vol. ii. p. 332. The
execution of charge in case of Ogilvie, July 6, 1807 ;
Smith, Murray's Reports, vol. iv. p. 404 ; Alison, vol. ii.
p. 566 et seq. ; White et Thomson, Bell's Notes, p. 326.
E. F. Maitland, A.D. — The present was not the pro-
per time for an objection of this kind. We undertake
to shew it is the genuine declaration of the prisoner, and
that the preliminary date is merely a clerical error, and
so the indictment bears. Moreover, it was not neces-
sary to have inserted any date. Besides, the docquet
proves the true date, and, in similar circumstances,
similar irregularities have occurred, and the libel been
drawn in the present style. Again, could a medical
certificate be rejected from a like clerical error ? The
authorities quoted do not apply. The declarations, taken
together, shew that the error was clerical, and all that
can be gathered from what has been quoted, is, that the
libel was wrongly dated in the cases quoted.
MiLLAU, in reply. — ^The prosecutor had failed to shew
that the preamble which sets forth the date was not a
part of the declaration ; and if it was, then the question
remained where it was, Can written evidence be over-
borne by parole ? True it is, no doubt, that there is a
docquet appended to the declaration, vi'hich also contains
a date. But the prosecutor is not entitled to avail him-
self of that, because, first, the obj'ection urged relates to
parole. If he thinks he can make good bis point as to
452 CASES BEFOBE THE HIGH COURT
No. 69. the true date by means of the docquet alone, good and
Robertson. Well, let him make the attempt. But he must not refer
Perth, to the docquet, as a pretence on which to introduce oral
laso. ' testimony. Farther, the docquet is no part of the de-
Murder, claration, and cannot be permitted to qualify the tenor
of the instrument, inasmuch as it is not signed by the
prisoner. The officials are the only persons who authen-
ticate it, and there is nothing to shew that it was not
written behind the prisoner's back, and at a time when
the date was a matter of uncertain recollection. Even,
however, were the docquet to be read as part of the de-
claration, the effect would be only to prove the whole
inconsistent in an important particular. The prosecutor
could not be entitled to set the one off against the
other; and to call in witnesses to decide on the one
which was correct. Sasines, for example, have two dates ;
the year of our Lord, and the year of the king's reign.
But, a discrepancy between them is a fatal flaw. Parole
proof is inadmissible to allay the conflict, and the same
rule ought to be applied here. The declaration was
either good or bad as it was authenticated by the pri-
soner. If it was good (which was not pretended), there was
no need of the parole proof to correct it ; but if bad, then
it ought to be cast aside ; for, to permit emendation,
would be to sanction something as evidence which truly
did not deserve the character.
The Lords consulted, and without further intimation
of opinion, directed the trial to proceed, reserving their
decision upon the question raised, until the declaration
objected to was tendered in evidence.
The following witnesses identified the declaration ob-
jected to, and swore to the same having been emitted in
the usual way, and twice read over in common form : —
William Duncan, (Senior Bailie, Brechin, and J.P.
Alex. Strachan, Writer in Brechin, and Joint Procurator-fiscal.
Andrew Eobertson, Sheriff-substitute, Forfar.
Mr Robertson. — I cannot state date from memory. It was soon
after man was taken to Brechin. Quite sure it was in 1848. At the
AND CIRCUIT COURTS OF JUSTICIARY. 463
same time I saw another declaration by him. A dooq^uet was put on No. 69.
at the same time. Identifies. There is a docquet on second, signed by -of-^^^
me and the prisoner ; seeing that, I can state with certainty that the — —
date of declaration before me was 10th March 1848. j„]„ 28.
18S0. *
Millar here renewed his objection to the reception of **"'^^^''-
the second declaration, on the grounds formerly stated.
Lord Cockbubn. — As I am convinced that the proof
establishes that the wrong date was a mere clerical error,
I am of opinion the objection must be repelled.
Lord Moncreiff. — I entirely concur. I cannot see
how we can reject this declaration, on the ground pro-
posed, after the parole evidence we have had, and the
docquet.
The pannel was unanimously found Guilty, but recom-
mended to mercy.
In respect of which verdict of assize, he was sentenced
to death, which was carried into execution accordingly.
HIGH COURT.
Present,
The Loed Justice-Clerk, isfo, "
Lords Monceeifp and Ivory.
Her Majesty's Advocate— Moncreif, Sol.-Gen.—Deaa, A.D.
AGAINST
William Bennison — Craufurd.
Bigamy— Foreign Law.— Held, that evidence of foreign law, de-
poned to by a skilled witness, was binding upon a Scotch Court,
where the subject-matter related to the validity of a foreign contract!
454 CASES BEFORE THE HIGH COURT
No. 70. William Bennison was accused of Bigamy and Murder :
William
Bennison,
High Court. In SO FAB AS, you the said William Bennison having, on or about
Aug- 1- the 5th day of November 1838, or on one or other of the days of that
'- — month, or of October immediately preceding, or of December immedi-
Murder ^'^^7 following, within the house situated at or near Tavonagh, or
Tavanagb, or at or near Olounagh, both at or near Portadown, all in
the parish of Drumcree, and coun^ of Armagh, in Ireland, then oc-
cupied by Elizabeth M'Lean or Scott, then residing there, and now or
lately residing with Jane Scott or Lutton, at or near Clanuacle, in the
parish of Tarlaraghan, and county of Armagh aforesaid, or at some
other place in or near the county of Armagh aforesaid to the prosecutor
unknown, been lawfully married by the Reverend Alexander Kerr,
then minister of the Presbyterian Church, at or near Portadown, in the
parish of Drumcree aforesaid, and who is now deceased, or whose place
of residence, if he be alive, is to the prosecutor unknown, to Mary
Mullen or M'Mullen, then or recently before in the service of, or re-
siding with, the now deceased John Mays, pawnbroker, then residing
in or near Portadown aforesaid, and having thereafter lived and co-
habited for some time with the said Mary Mullen or M'Mullen as your
lawful wife, in or near the parish of Drumcree aforesaid, and elsewhere
in Ireland, you the said William Bennison did, at the lapse of several
months or some other short time after your said marriage, desert or
leave the society of the said Mary Mullen or M'Mullen, and did pro-
ceed to and take up your residence at or near Paisley, in the county
of Renfrew, or elsewhere, in Scotland, and you the said William Ben-
nison did, on the 5th day of December 1839, or on one or other of the
days of that month, of November immediately preceding, or of Ja-
nuary immediately following, and while the said Mary Mullen or M'Mul-
len was still alive, and the said marriage still subsisting, within the
house situated in or near Storey Street, in or near Paisley aforesaid,
then occupied by the now deceased Helen Kenny or Hamilton, then
residing there, wickedly and feloniously, enter into a matrimonial con-
nection with the now deceased Jane or Jean Hamilton, daughter of,
and then or recently before residing with, the said Helen Kenny or
Hamilton, the marriage ceremony having been, time and place last above
libelled, performed by the Reverend Joseph Hudson, Wesleyan minister,
then residing in or near Paisley aforesaid, and now deceased, or whose
place of residence, if he be alive, is to the prosecutor unknown, and
you did thereafter live and cohabit with the said Jane or Jean Hamil-
ton as your wife, in or near Paisley aforesaid, for several weeks or for
^some other or longer period, the particular period being to the prosecutor
unknown, and this you did, you well knowing that the said Mary Mullen
or M'Mullen was then alive ; and at the lapse of the said several weeks
or other period last above libelled, you the said William Bennison
did desert or leave the society of the said Jane or Jean Hamilton
AND CIRCUIT COURTS OE' JUSTICIARY. 455
for several weeks or some other short period, and did return to Ireland, No. 70.
and did live and cohabit during this last-mentioned period with the William
said Mary Mullen or M'Mullen in or near Lurgan, in tlie parish of '^°°'
Shankir, in the county of Armagh, or elsewhere, in Ireland, and did "'Sh Court,
at the lapse of the said last-mentioned period, leave Ireland along with isfo. '
the Baid Mary Mullen or M'Mullen, whose subsequent or present place '^. T"
of residence, if she be still alive, is to the prosecutor unknown : And Murder,
you the said William Bennison did, immediately or shortly after leav-
ing Ireland as last above libelled, return to Paisley aforesaid, and did
thereafter live and cohabit with the said Jane or Jean Hamilton as
your wife at Paisley aforesaid, and elsewhere, till her death as after
libelled : Farther, on the 12th or 13th day of April 185(3, or on one
or other of the days of, that month, or of March immediately preced-
ing or of May immediately following; within or near the house situated
in or near Stead's Place, in or near Leith "Walk, in or near Edinburgh,
then occupied by you the said William Bennison, you the said William
Bennison did, wilfully, wickedly, and feloniously, and with intent to
murder, or grievously to injure, the said Jane or Jean Hamilton, then
residing in the said last-mentioned house, mix, or cause or procure to
be mixed, with a quantity of porridge, or of oatmeal, or other meal, or
with some article of food or drink to the prosecutor unknown, which you
expected to be used, gave or partaken of by the said Jane or Jean
Hamilton, or which you gave to her to be usedorpartakenof byher,aquan-
tity of arsenic, or other deadly poison to the prosecutor unknown ; and the
said Jane or Jean Hamilton having accordingly, timeand place last above
libelled, used or partaken of the said porridge, or oatmeal, or other meal,
or other article of food or drink aforesaid, or part thereof, the said Jane
or Jean Hamilton did, immediately or soon thereafter, become seriously
ill, and did, after lingering in a state of great suflferiug, die on or about the
second or third day thereafter, in consequence or from the effects of the
said quantity of arsenic or other deadly poison, or part thereof, so ad-
ministered by you to her, or caused to be taken by her as aforesaid ;
and the said Jane or Jean Hamilton was thus murdered by you the
said William Bennison.
Mrs Mary Long, Sarah Johnstone, Rachel Ford, and
Elizabeth HoUingwood, proved that the prisoner, in 1838,
in Ireland, by a now deceased Presbyterian minister of
the name of Kerr, in the house of a Mrs Scott, was mar-
ried to one Mary Mullen : That she was a Methodist ;
and that he had been seen in Methodist chapels, though
whether he ever communicated anywhere, was not proved
by them ; and they could not say whether or not he com-
municated with the Church of England.
456 CASES BEFORE THE HIGH COURT
No. 70. James Gibson. — I am a barrister in Belfast. A marriage cele-
BennUon ''rated by a dissenting clergyman, between two dissenters, without
„■ „ — 7 publication of banns, in 1838, would be a good and valid marriage as
Aug. 1. the law stood. Not so if they were Roman Catholics, but certainly so
^''^''- if Protestant Dissenters, — e. g. among Methodists.
Bigamy & Cross-examined. — If either party had belonged to the Episcopalian
""^ ^^' Church, it would not have been a valid marriage ? Under the autho-
rity of the Queen v. Mellis, thought to be good at the time. Protes-
tant Dissenters include all Protestants not of Episcopalian Church ?
I cannot speak as to Primitive Methodists. If explained to me, a man
had been baptized in the^Ohurch of England, and never had joined
another body, what would be the result ? I should say, in the absence
of all proof to the contrary, I should hold baptism to be taken as shew-
ing that he was of the Episcopal Church. If the true design of Primi-
tive Methodism is that it shall be a society, and shall not create itself
into a sect or church, then, would persons baptized in Church of Eng-
land necessarily remain so in the eye of the law ? So far as that goes,
•he would remain of the Church of England. I spea;k merely as to this
By the CouET. — I speak solely as to this proposition in the book.
In determining the point, in Ireland, we would enquire into the man's
whole conduct, to see whether he had thrown off connection with the
Church of England. I never heard of such a case as the pure and
abstract case of 'baptism alone, without more being known of the party.
There are three acts, all retrospective, 5th and 6th Will. IV., c. 113,
that declared marriage to be good if no lawful marriage intervened.
They had been believed to be good marriages. The majority of Irish
judges held otherwise. There was a special verdict. The Court
divided equally, and it went to the House of Lords.
The second marriage was clearly proved, and a vast
extent of evidence led, which would be too long to give
here, the object being to render it probable that he was
the occasion of his first wife's death after the second
marriage.
A great amount of circumstantial evidence was then
adduced, to prove that the deceased, in respect of whose
death the present trial took place, died from poison, and
that it was the prisoner who had administered it.
The following exculpatory evidence on the part of the
pannel was then led : —
The Rev. John M'Innely. — I am a Presbyterian minister at Bally-
macarrat. I knew the late Mr Kerr. He has been dead ten years.
AND CIRCUIT COURTS OF JUSTICIARY. 457
The book now shewn, I cannot swear to be in his handwriting, but I No. 70.
, ,. . , X i William
beheve it to be. 1 see an entry — Bennison.
W. Bennison, Novr. 5. 1838, High Court.
Mary Mullins also. iisl'o^'
"Where no religious profession entered, it is considered that the parties gjgg^^jy ^
are Episcopalian ; but I am unable to say from what information the Murder,
columns are filled up.
Mary Bennison.— I am sister to defendant. I live in Irvine. My
father was a member of the Church of England. I cannot say that he
was very religious, but all the family were baptized in the parish
church. I do not know that my brother William attended the Primitive
Methodists. He married in Ireland.
Craufubd, in addressing the jury, argued, that on
this evidence they must hold the pffence of bigamy
as disproved. It was clear law, that a marriage in
Ireland, in 1838, by a Presbyterian minister, between
an Episcopalian and a dissenter, was a bad marriage.
That being so, if the evidence shewed that Bennison
was, at the time of his marriage, in 1838, with Mul-
len, an Episcopalian, or even if it rendered it probable
he was, they could not find him guilty of bigamy
by marrying again. In this case, he maintained it was
shewn that he was an Episcopalian. The entry in
the book of Mr Kerr rendered this probable, as that was
the usual way of entering marriage certificates when the
parties were of the Episcopal persuasion. Besides, in ad-
dition to the proof from his sister that he was baptized in
church, it would seem he was not in the habit of attend-
ing the Methodist Chapel, except occasionally probably to
oblige Mary Mullen. In these circumstances, therefore, he
argued, that the jury must throw overboard all that had
been said concerning the first wife. He then addressed
himself to the general evidence of the case, and concluded
by asking a verdict of acquittal.
The Lord Justice-Clerk, in charging the Jury, re-
marked, that it was important that the charges should
be considered together, inasmuch as if being married,
he had deserted his first wife in the heartless manner
proved, it would form a very serious introduction to the
458 CASES BEFORE THE HIGH COURT
No. 70. ^ evidence against him in the present case. It was no ex-
Bennison. cuse for n man to say, that at the time of the second mar-
High Court, riage, he was unaware that his first wife was still alive.
1850. ' He was bound to make due enquiry, and to have ascer-
Bigamy & twined the fact, before he represented himself a free man
Murder, g^ ^q marry again.
With regard to the validity of the first marriage, in that
matter they must be guided by the foreign law, as ex-
pounded by Mr Gibson, and as applicable to the facts.
It lay on the prisoner, who is now a Methodist, to prove,
that in 1838 he was an Episcopalian, before he could
gain the exemption given by that law. It was not to
be matter of guess or speculation, but clear proof, as Mr
Gibson remarked. The mere fact of baptism was not
enough. They would enter into his history, and see
whether he was, at the time of marriage, an avowed
Episcopalian. Nothing would be more dangerous than
to hold, that, because thirty years before, when an infant,
a man was baptized by an Episcopal clergyman, he could
therefore avoid a marriage honestly contracted before a
Presbyterian minister, and thereby disown his wife, and
bastardise his children. It lay on the prisoner, therefore,
to have proved his connection with the Church of Eng-
land at the time, before he could upset his first mar-
riage. In his, the Lord Justice-Clerk's, opinion, he had
failed to do this, but the Jury would judge.
His Lordship then went over the whole case, and ex-
plained it to the Jury, with his usual clearness.
The Jury unanimously found the pannel Guilty, as
libelled.
In respect of which verdict of assize, he received the
sentence of death, and was hanged accordingly.
AND CIRCUIT COURTS OF JUSTICIARY. 459
WEST CIRCUIT.
INVERARAY.
Judge — The Loud Justice-Clerk. ^Trro ^'
Her Majesty's Advocate — E. F. Maitland, A.D.
AGAINST
Hugh M'Neillage. — Maconochie.
Indictment — Competency. — Held, that where an indictment omitted
the usual words of style referring to conviction by a jury,' but only
referred to his judicial confession as the ground of punishment, it
was competent to object, after the jury were sworn, to the trial pro-
ceeding, and that such objection was fatal.
Hugh M'Neillage was accused of Cattle Stealing : No. n.
° Hugh
M'Neillage.
In so par as (1.), upon the 27th or 28th day of May 1850, or on
one or other of the days of that month, or of April immediately preced- gept. is.'
iug, or of June immediately following, from or from near the drove ^850.
stance of King's House, or open ground, in the parish of Ardchattan, Cattle
or united parishes of Ardchattan and Muckairn, and shire of Argyll, ''*^^"°S-
which is situated adjoining or near to the eastern side of that part of
the public road leading from King's House Inn, in said parish or
united parishes, then and now or lately occupied by Malcolm Christie,
then and now or lately innkeeper there, to the top of the Black Mount,
in the shire of Argyll, which extends from said Inn to a distance of
three miles, or thereby, or from or from near said part of said road, or
elsewhere adjacent thereto, to the prosecutor unknown, you the said
Hugh M'Neillage did, wickedly and feloniously, steal and theftuously
away take, six, or thereby, stots, the property, or in the lawful pos-
session, of Donald Cameron, then and now or lately tenant of and re-
siding at or near the farm of Erracht, in the parish of Kilmallie, and
shire of Inverness, and of Archibald Cameron, then and now or lately
tenant of and residing at or near the farm of Glenshealloch, in the
parish of Kilmallie aforesaid, or of one or other of them : Likeas (2.),
on the 17th or 18th day of June 1850, or on one or other of the days
of that month, or of May immediately preceding, or of July imme-
diately following, from or from near a tract of ground or field, called
or known as Tomnaha or Achnaha, situated on or near the farm of
460
CASES BEFOEE THE HIGH COURT
No. 71.
Hugh
M'Neillage,
Inveraray,
Sept. 18.
1850.
Cattle
Stealing.
Achnashellach, theu and now or lately occupied by Hugh M'Lachlan,
then and now or lately tenant of and residing at or near Achnashellaoh
^ aforesaid, or from or from near some other part of the said farm of
Achnashellach to the prosecutor unknown, all situated in the parish of
Glassary, and shire of Argyll, you the said Hugh M'Neillage did,
wickedly and feloniously, steal and theftnously away take, a horse, the
property, or in the lawful possession, of John Blair, a cottar, then and
now or lately residing at or near Dunamaraig, in the parish of Glassary
aforesaid : Likeas (3.), time last above libelled, on or near that part
of the farm road or entrance, commonly called, or known as, the Up-
per Eoad, leading from the public road between Ford and Kilchrenan,
both in the shire of Argyll, to the farm of InTerliyerbeg, in the parish
of Kilmartin, and shire of Argyll, then and now or lately .occupied by
Robert M'Kechnie, farmer, then and now or lately residiiig there,
which is distant twenty yards, or thereby, or other short distance from
the said public road, and is in the parish of Kilmartin aforesaid, or on
or near a field or |piece of ground, part of said farm of Inverliver-
beg, situated adjoining or near to said part of said farm road or en-
trance, you the said Hugh M'Neillage did, wickedly and feloniously,
steal and theftuously away take, a saddle, and bridle, the property, or
in the lawful possession, of Duncan M'Tavisb, then and now or lately
tenant of and residing on or near the farm of Arichamish, in the parish
of Kilmartin aforesaid, or in the lawful possession of the said Robert
M'Kechnie ; and you the said Hugh M'Neillage have been previously
convicted of theft : And you the said Hugh M'Neillage having been
apprehended and taken before Sir John Hay, Baronet, advocate, sherifi"-
substitute of Stirlingshire, you did, in his presence at Stirling, emit a,
declaration, dated the 22d day of June 1 850, which was subscribed by
him in your presence, you having declared you could not write : And
you the said Hugh M'Neillage having been thereafter taken before
John Maclaurin, Esquire, sheriff-substitute of the shire of Argyll, you
did, in his presence at Inveraray, emit two several declarations, dated
respectively the 4th day of July 1850, and 18tb day of July 1850,
which were severally subscribed by the said John Maplaurin in your
presence, you having declared yon could not write : Which Declara-
tions ; As also, a saddle ; As also, a bridle ; As also, an extract or cer-
tified copy of a conviction of the crime of theft, obtained against yon
the said Hugh M'Neillage, before the Sheriff-court of Stirlingshire, at
Stirling, dated the 7th day of January 1850, being to be used in evi-
dence against you the said Hugh M'Neillage at your trial, will, for
that purpose, be in due time lodged in the hands of the Clerk of the
Circuit-court of Justiciary before which you are to be tried, that you
may have an opportunity of seeing the same : All ■which, or part
thereof, being found proven by the judicial confession of you the said
Hugh M'Neillage, before the Lord Justice-General, Lord Justice-Clerk,
and Lords Commissioners of Justiciary, in a Circuit-court of Justiciary
AND CIRCUIT COURTS OF JUSTICIARY. 461
to be holden by them, or by any one or more of their number, within No. 71.
the burgh of Inveraray, in the month of September, inthis present ^'Neiflage.
year 1850, you the said Hugh M'Neillage Ousht to be punished with
the pains of law, to deter others from committing the like crimes in all Sept. 18.'
time coming. ^850.
Cattle
The pannel pleaded Not Guilty, and was remitted to
an assize.
After the Jury had been sworn, Maconochie object-
ed to the competency of the Jury taking cognizance of
the offence, in respect of the terms in which the indict-
ment was framed, the usual words of style, ' all which,
' or part thereof, being found proven by the verdict of
' an assize,' being omitted ; the words, ' being found proven
' by the judicial confession of you the said Hugh M'Neil-
' lage,' &c. being alone there.
The Lord Justice-Cleek. — Why was not this taken
to relevancy?
Maconochie. — In that case the prosecutor would
have withdrawn his indictment, whereas, if the objection
is a competent one, which it is submitted it is, it is good
now after the Jury are sworn.
Maitland. — ^The objection comes too late. If it was
competent to have stated it to relevancy, that was the
only competent time ; and, by waiving all objection, the
Court has admitted the libel to be good. He did not
farther object to the usual interlocutor remitting him to
the assize, which he now says is incompetent to try him.
The LoTiD Justice-Clerk held the objection to be
good, and that it was not stated too late.
In respect whereof, the pannel was assoilzed simpUciter,
and dismissed from the bar.
462 CASES BEFORE THE HIGH COURT
HIGH COURT.
Present,
Nov. 16. The Lord Justice- Clerk,
1850.
Lords Moncreifp and Cookburn.
Her Majesty's Advocate — Sol. Gen. Moncreiff—Deas A.D. —
J. M. Bell A.D.
Peter Peanver — B. Eohertson.
Insanity — Bar op Trial. — Circumstances in which the Court
thought insanity sufficiently proved to bar trial.
jjq 72 Peter Peanver was indicted for Murder.
™^nvL ^' Robertson, for pannel, pleaded insanity in bar of
trial.
Peanver.
High Court.
Nov. 16. A proof was allowed
IPSO -T
1850.
Murder. Professor Miller. — I examined prisoner in March last, at the
request of the authorities. I found him thoroughly insane. I have
seen him since. I saw him yesterday; he was entirely insane.
Cross-examined. — I think him totally insane, and incapable of in-
structing counsel for his defence. He was manacled by my direction.
It is insanity increased by excitement ; and a very little would make
him dangerous.
Dr R. Spittal. — I have been employed to visit prisoner. I saw
him two or three days after confinement. I saw him to-day. At first
he was in a melancholy state ; there was an occasional scowl on his
face. He appeared then decidedly insane. He is now rather more
depressed, but still decidedly insane.
To the Court. — He could by no means instruct counsel intelligently.
I concurred in his being manacled. He is, in my opinion, a dangerous
madman.
The Court found the pannel not in a fit state to un-
dergo trial, and ordained him to be detained in Perth
jail, subject to the orders of the Court.
AND CIRCUIT COURTS OF JUSTICIARY. 463
Present,
Lord JusTiCE-CtBEK, O^p ]4_
I860. '
Lords Moncreiff and Ivory.
The Right Hon. the Earl op Selkirk, Advocator — Cook,
AGAINST
Alexander Kennedy, Respondent — Tytler.
Statute 2d and SdWiLL. IV. cap. 68. — ^Trespass. — Held, that a farm-
servant in pursuit of game, on lands occupied by bis master, was a
trespasser under tbe provisions of the statute.
This was an advocation of a deliverance by the Justices No. 73.
of the stewartry of Kirkcudbright, sustaining a defence Selkirk «.
proponed on behalf of the respondent in the following ^™°°^^'
fp-mo. High Court.
terms . — Dee. u.
' That the defender, being a farm-servant in the service '^^"'
' and emplojTnent of John Muir jun., tenant and occu- ^'^^°''**'™-
' pier of the lands of Lochfergus, mentioned in the com-
' plaint, and, in such service and employment, on the
' 12th day of October last, was legally upon the said
' lands of Lochfergus, and cannot be proceeded against
' under the statute.'
After hearing parties, the Justices pronounced the
following interlocutor : —
' The Justice having considered the petition and com-
' plaint, and the objections and answers thereto, sustains
' the objection, and dismisses the complaint, and decerns.'
This interlocutor the Earl of Selkirk advocated, pray-
ing the Court to adjudicate that the respondent was
liable as a trespasser under the statute,^ although he was
seeking game on lands occupied by his master.
1 By statute 2d and 3d Will. IV. c. 68, it is enacted (§ 1.) ' That if
' any person whatsoever shall commit any trespass, by entering, or
2h
464 CASES BEFORE THE HIGH COURT
No. 72. Cook, for the advocator, stated, that the statute afford-
Seikirk v. cd no protection to a farm-servant on lands for an un-
^°"° ^' lawful purpose, and unconnected with agricultural pur-
High Court.
Dec. 14. ;
'__ ' being, in the day time, upon any land, without leave of the proprietor,
Advocation, i j„ search or pursuit of game, &c., such person shall, on being summarily
' convicted thereof before a Justice of the Peace, on proof or oath by
' one or more credible witness or witnesses, or confession of the offence,
' or upon other legal evidence, forfeit and pay such sum of money, not
' exceeding £2, as to the Justice shall seem meet, together with the
' costs of the conviction.' (§ 3.) ' That, for the purposes of this act, the
' day time shall be deemed to commence at the beginning of the last
' hour before sunrise, and to conclude at the- expiration of the first
' hour after sunset.' (§ 7.) ' That every penalty and forfeiture for
' any offence against this act shall be paid to the moderator, or other
' officer of the kirk-session of the parish where the offence was com-
' mitted, for the use and benefit of the poor of such parish.* (§ 8.)
' That the Justice or Justices of the Peace by whom any person shall
' be summarily convicted and adjudged to pay any sum of money, for
' any offence against this act, together with expenses, may adjudge
' that such person shall pay the same either immediately or within
' such period as the said Justice or Justices shall think fit, and that,
' in default of payment at the time appointed, such person shall be im-
' prisoned in the common jail or house of correction (with or without
' hard labour), as to the Justice or Justices shall seem meet, for any
' term, not exceeding two calendar months, the imprisonment to cease
' upon payment of the amount and costs.' (§ 11.) ' That the prosecu-
' tion for every offence punishable by virtue of this act shall be com-
' menced within three calendar months after the commission of the
' offence ; and that where any person shall be charged, on th'e oath of
' a credible witness, with any such offence before a Justice of the
' Peace, the Justice may summon the pajty charged to appear before
' himself, or any one or two Justices of the Peace, as the case may
' require, at any time and place, to be named in such summons;
' and if such party shall not appear accordingly, then (upon proof of
' the due service of the summons, by delivering a copy thereof to the
' party, or by delivering such copy at the ptoty's usual place of abode,
' to some inmate thereat, and explaining the purport thereof to such
' inmate) the Justice or Justices may either proceed to hear and deter-
' mine the case in the absence of the party, or may issue his or their
' warrant for apprehending and bringing such party before him or
' them, as the case may be ; or the Justice before whom the charge shall
' be made, may, if he shall have reason to suspect from information
' upon oath, that the party is likely to abscond, issue such warrant in
' the first instance without any previous summons.'
AND CIRCUIT COURTS OP JUSTICIARY. 465
poses. Besides, the words of the statute were, ' without No. 73.
' leave of the proprietor, and this drew a clear distinc- seiMrk v.
tion between the rights of the landlord to the game, and ™°* ^'
the mere right of occupancy of the tenant. ifec. u. "
Tytlek, for the respondent, — ^The case was governed ^^^"'
by that of Smellie,- Broun, vol. ii. p. 194. This was a ^^'"^^°''-
statutory offence, and the statute must receive a strict
construction. It was said that the consent of the pro-
prietor must be had ; but, in a question of trespass, the
whole matter was, had the party accused a good title to
be on the lands. The servant was just as much pro-
tected as the tenant would be ; and the judgment of the
Court must go the length of holding the latter liable to
be prosecuted under the statute in case they advocated
the judgment under review.
Lord Monceeiff. — I think there is a clear distinction
between the case of servants hired for a special purpose
and farm-servants generally. The case of Smellie came
to this, that, in that case, there was a clear title to be
upon the ground, and incidentally using the power with
which he was invested for the purpose of killing game.
An ordinary farm-servant had no right to be upon the
ground, except as servant to his master, and for agricul-
tural purposes, for which purposes alone the landlord had
let the farm, reserving the rights of game to himself. It
would indeed be strange if the law made the landlord
answerable for an undue excess of game to his tenant, and
yet not count the latter a trespasser if he destroyed it
when not in excess, either by himself or his servants. I
think, therefore, the Justices erred in finding the defence
here proponed a relevant one. On the contrary, I think,
under the circumstances, a clearer case of contravention
of the policy and plain import of a public statute can
scarcely be conceived.
Lord Ivory concurred.
The Lord Justice-Clerk.— Unless we are to hold
that the granting of a lease, ipso facto, gives an unquali-
fied right to the tenant to the game on the subjects let.
466 CASES BEFOEE THE HIGH COURT
No. 73. as against the landlord, I own I am unable to see how
sfikiikl we can sustain the deliverance of the Justices.
^^°°^'^y- The Court pronounced the following interlocutor : —
^i)tc^?r" ' Edinburgh, Uth December 1850.— The Lord Justice-
i^^"- . ' Clerk and Lords Commissioners of Justiciary having
Advocation. . ^^^^^ parties' procurators, refuse the bill : But, in re-
' spect that the defence or objection stated for the re-
' spondent to the competency of proceeding against him
' as a trespasser, under the statute libelled on, is ill
' founded, remit to the Justices to recal the sentence
' complained of, to repel the objection stated to the
' relevancy of the complaint, and thereafter to proceed
' therein as accords of law,'
(Signed) ' J. Hope, I.P.D:
Charlotte Scott or Chapman, Suspender — Graufwrd^
AGAINST
John Coltillb, Respondent — G. Young.
Sentence. — Circumstances in which a conviction was sustained, al-
though the parties accused were not furnished with a list of wit-
nesses, nor were allowed time to prepare defences, and no record
was kept.
No. 74. This was a suspension of a sentence by the Justices of
ChapmaTi). ^^^^f proceeding upon the following statement : —
Colville.
High Court. ' '^^^ complainers were not informed with what crime they were
Dee. 14. ' charged, and had in point of fact been guilty of no crime whatever.
. ' No copy of any libel, complaint, or petition against them was served
■ ' upon them, nor any list of witnesses ; and none such, at least no list
' of witnesses, existed. No agent was allowed them, and no interval
' between the time of their being brought before the Justices and con-
' viction. They now understand that they were charged with being
" drunk and disorderly, fighting, and making a great noise in Carme-
1850.
AND CIRCUIT COURTS OF JUSTICIARY. 467
" lite Street of Banff, and also in the house situated there, known as No. 73.
" the Beed House, and that they did collect a great crowd in the street, chaDman''p
" and the lieges were much disturbed and alarmed ;' but this charge Colville.
' was not established against them, and there was no examination of High Court.
' the parties present, nor does it appear on what evidence the Justices Dec. 14.
' proceeded, and there is no proper record which will enable the com-
' plainers to bring the sentence under review.'
The respondent, the Procurator-fiscal, answered, that
the suspenders had been apprehended whilst engaged in
a drunken quarrel ; that they were taken to the office in
a drunken state ; that they were informed of the charge
against them, and severally pleaded not guilty thereto ;
and further, that the first named suspender was an in-
corrigible pest, and had been repeatedly convicted.
Ceaufurd, for Suspenders. — It was unnecessary to
say much. The suspenders had had no proper oppor-
tunity of meeting the charge, but were, de piano, taken
before the Justices, and received the sentences com-
plained of, without any warning and without any op-
portunity of obtaining assistance. No doubt, they did
not ask delay ; but the proceeding was too summary as
against ignorant women. There was no authority in a
Justice of Peace to act in so summary a manner, without
complaint first made and regularly served.
Lord Moncreifp. — This is a case of two women hav-
ing been taken up for fighting and brawling in the streets
of Banff, perfectly drunk. The complaint was written
out and read over to them. The women being drunk,
what could the Justices do ? Seeing them in that state,
they pronounced a sentence of imprisonment. The im-
prisonment being so long must be ascribed to the fact of
their being known characters.
Lord Ivory. — I am of the same opinion.
The Lord Justice-Clerk. — I quite concur in the opi-
nions which have been delivered, and move your Lord-
ships to refuse the note of suspension, with expenses.
Gjbson Craigs, Dalziel & Bbooie, W.S., Complainera' Agents,
Inqlis & Burns, W.S., Respondent's Agent.
468 CASES BEFORE THE HIGH COURT
Present,
Jan. 6. Lords Moncreipp, Cockburn, and Ivory,
18S1.
Her Majesty's Advocate — Sol.-Gm. Moncreiff—Deas, A.D.
AGAINST
Margaret M'Millan or Shearbr^ — Burnet.
Culpable Homicide — Assault. — Held, that where death ensues
from an unlawful blow, if it ensue therefrom in an ordinary and na-
tural way, although, with proper management, the injury might
have been cured, it is properly charged as Culpable Homicide.
No. 76. Margaret M'Millan or Shearer was charged with
-mmL. Culpable Homicide ; as also, Assault, to the effusion of
or Shearer.
blood, injury of the person, and danger of life ;
High Court.
Jan. 6.
1851. In so par as, on the 31st day of August 1850, or on one or other
Culpable of the days of that month, or of July immediately preceding, or of
Homicide, September immediately following, in or near the house situated at or
near Carnbeg, in the parish of Kilcalmonell, and county of Argyll,
then occupied by Elizabeth Layburn, then residing there, and now de-
ceased, you the said Margaret M'MjUan or Shearer did, wickedly and
feloniously, attack and assault the said Elizabeth Layburn, and did,
with a stool or creepie, strike her one or more violent blows on the
head, and did otherwise maltreat and abuse her, whereby she was
severely cut and wounded to the injury of her person, and the effusion
of her blood, and in consequence of the said injury or injuries so in-
flicted by you, or in consequence thereof and of lock-jaw or erysipelas,
or some other disease to the prosecutor unknown, resulting from the
said injury or injuries, the said Elizabeth Layburn died on or about
the 7th day of September 1 850, and was thus culpably bereaved of
life by you the said Margaret M'Millan or Shearer : Or otherwise,
time and place above libelled, you the said Margaret M'Millan or
Shearer did, wickedly and feloniously, attack and assault the said
Elizabeth Layburn, and did, with a stool or creepie, strike her one or
more violent blows on the head, whereby she was severely cut and
wounded to the injury of her person, the effusion of h^r blood, and the
danger of her life.
The evidence in the case shewed that the prisoner,
along with the deceased and two other women, lived in
AND CIRCUIT COURTS OF JUSTICIARY. 46.9
the same house. That on the nMit before the quarrel. No. 76.
Margaret
the deceased and four others had drunk two bottles of M'Miiian
whisky. One witness said, ' All were well enough, but - — ^-^
' not drunk.' In the morning a quarrel took place be- jan. 6.
lot]
tween the prisoner and the deceased, first in the kitchen, '
and then in the garden. In the latter place the prisoner Homieide,
lifted a stool and struck the deceased on the head, who *"'■
lifted it up and said she has done for me. It bled very
much. She was carried into the house, and received no
medical treatment. She was seized, six days after the
blow, with lock-jaw, and died next day. The medical
men who were examined, deponed to finding her in a
state of lock-jaw, from the injury inflicted by the pri-
soner. They said, that had aid been sought in time, the
lock-jaw might not have followed, thought it might, even
under the most skilful treatment. This was the exclu-
sive occasion of death. There was no appearance of drink
about her when they saw her. She was of a good con-
stitution. Had she taken drink before, that would ag-
gravate the evil.
The Solicitor-General asked a verdict of Cupable
Homicide.
Burnet urged, that it only amounted to an assault,
to effiision of blood, injury to person, and danger of life,
inasmuch as death might not have ensued, except for her
previous habits, and the subsequent want of proper aid.
Lord Monceeiff told the Jury in his summing up,
that they must determine whether the blow struck was
a culpable blow ; that if they thought it was, then the
pannel would have no justification for any consequence
which might result therefrom in a usual and natural
way. If, therefore, ' the death ensued in a usual and
natural way from the blow so culpably given, the pannel
was guilty of culpable homicide, although it might have
been averted by scientific and proper treatment.
The Jury unanimously found the pannel guilty of
Culpable Homicide as libelled, but recommended her to
mercy.
470 CASES BEFORE THE HIGH COURT
In respect of which verdict of assize, she was sen-
tenced to one month additional imprisonment to the four
she had undergone before her trial.
Present,
Feb. 24. The Lord Jcsticb-Clerk,
18S].
Lords Wood and Ivory.
Her Majesty's Advocate. — jSoL Gen. Moncreif—J. M. Bell, A.D.
AGAINST
Peter Galloway — J. Shaw.
Indictment — Relevancy — Culpable Homicide. — Tenns of an In-
dictment which was withdrawn, on the recommendation of the Court,
as not being sufficiently precise.
No. 76. Petee Galloway was accused of Culpable Homicide
Gaifoway. iu tcrms of the following indictment :-; —
^Veh°^i^' ^^ ®° ^^^ ■*-®' y*"^ *^® ^^^^ Peter Galloway occupying premises,
1851. particularly a shop and dwelling-house, situated in or near Alexander
Culpable Street of Airdrie, in the parish of New Monkland, and shire of Lanark,
Homicide, and your said premises being surrounded by other houses and shops, in
the populous town or burgh of Airdrie foresaid ; and being locally
situated within the limits set forth as the boundaries of the said burgh
of Airdrie, in the statute 12 and 13 Vict. cap. 89, commonly called
' The Airdrie Police and Municipal Act 1849,' within which bounda-
ries the provisions of the said Act were to be in force ; and for the
further preservation of life and property within the foresaid limits or
boundaries, against the risk and danger of the explosion of gunpowder
therein, it having been enacted by section 55 of the foresaid Act, ' That
' it shall not be lawful for any person to have or keep any quantity of
' gunpowder exceeding ten pounds in weight in any house, shop, or
' other premises within the limits of this Act ; and if any person shall
' contravene this enactment, such person shall be liable in a penalty
' not exceeding twenty pounds for every hundred pounds weight of
' gunpowder so had or kept, and so in proportion for any greater or
' less quantity ; and all such gunpowder shall be seized and forfeited ;'
and it haying been farther enacted by section 56 of the foresaid Act,
' That air gunpowder which may be kept in any shop, house, or other
' premises, within the limits of this Act, shall be kept in stone jugs or
' canisters, properly covered, and having the word ' gunpowder' legibly
Homicide.
AND CIRCUIT COURTS OF JUSTICIARY. 471
' inscribed thereon, or on a label thereto properly attached, and shall No. 7S.
' also be kept separate from all other goods or commodities, and gg^jf^™
' secured by lock and key, under a penalty not exceeding five pounds —_
' for every such offence, to be paid by the owner, or by the person in p^i, g™ '
' whose possession any gunpowder not so kept and secured shall be ^851.
' found ; and such gunpowder shall be seized and forfeited ;' and more- Culpable
over, you the sajd Peter Galloway being bound at common law, in the
event of your having in your possession or keeping, in or near the pre-
mises aforesaid, so large a quantity of gunpowder as was suflScient, upon
explosion, to destroy or greatly endanger the lives of yourself and your
neighbours, or any of them, or to destroy or greatly injure the dwell-
ing-houses of yourself and your neighbours, or any of them, to employ
all due care and caution in the manner of keeping, or handling, or in
any way using or intromitting with the said gunpowder, so as to guard
against causing undue risk of its being suddenly exploded, to the de-
struction, or to the great danger of life, or to the destruction or great
injury of property : Yet, nevertheless, true it is and of verity,
that on the 4th day of September 1850, or on one or other of the days
of that month, or of August immediately preceding, oi*of October im-
mediately following, in or near your said premises situated in or near
Alexander Street of Airdrie aforesaid, in contravention of the statu-
tory provisions above recited, or of one or more of them, and in viola-
tion of the obligation incumbent on you at common law as aforesaid,
you the said Peter Galloway, culpably and recklessly, had in your
possession or keeping, in or near a kitchen or other room forming part
of your said premises, a cask or keg, or other vessel, the same not
being a stone jug or canister, nor kept secured by lock and key, nor
otherwise kept in conformity with the statutory provisions before re-
cited, and the same containing twenty-five pounds weight of gunpowder,
or thereby, or containing some other quantity of gunpowder above the
weight of ten pounds, but the particular quantity being to the prose-
cutor unknown ; as also, another cask or keg, or other vessel, the same
not being a stone jug or canister, nor kept secured by lock and key,
nor otherwise kept in conformity with the statutory provisions before
recited, and the same containing gunpowder, part of the original con-
tents of which last-mentioned cask or keg, or other vessel, had been
removed, but about twelve pounds weight of gunpowder, or thereby,
or some other quantity of gunpowder to the prosecutor unknown, still
remained in the last-mentioned cask or keg or other vessel ; and the
gunpowder in both and each, or one or other, of said casks, kegs, or
other vessels, being of such amount or quantity as was sufficient, upon
explosion, to destroy or greatly endanger the lives of any persons who
were near, or to destroy or greatly injure the premises foresaid of you
the said Peter Galloway, and the houses occupied by your neighbours,
or part thereof; and there being then, in or near the foresaid room or
kitchen, you the said Peter Galloway, and John M'Dougall, now or
472 CASKS BEFORE THE HIGH COURT
No. 76. lately collier or shanker, and uow or lately residing with John Finnie,
„ ^f'®'^ now or lately collier, and now or lately residing in or near Clark
— ■ Street of Airdrie aforesaid, the said John M'Dougall being then or
:^b. 24. ' lately in your employment ; and there being also then several other
1851. persons in or near the said room or kitchen, or otherwise in or near
Culpable the premises foresaid of you the said Peter Galloway, particularly
Homicide. William Jaevons, a boy of about seven years of age, or otherwise of
tender years, then or lately before residing with James Mattocks or
Maddox, now or lately furnace-man, and now or lately residing in or
near Dundyvan Eoad, at or near Dundyvan, in the parish of Old
Monkland, and shire aforesaid ; and the said John M'Dougall, then or
lately in your employment as aforesaid, having desired to have a flask
or other vessel which was fitted to contain about six pounds weight of
gunpowder, or thereby, or otherwise, some considerable quantity of
gunpowder, filled with gunpowder, or you the said Peter Galloway
being otherwise desirous to put a quantity of gunpowder out of one of
the casks or kegs or other vessel above mentioned, into the said flask
or other vessel, you the said Peter Galloway did, culpably and reck-
lessly, omit th^due precautions obviously required for the safe keeping
or handling or intromitting with the said gunpowder, and did pour out
a quantity of gunpowder from the said cask or keg or other vessel, from
which a part of the original contents had been previously taken, as
aforesaid, into or upon or near the mouth of the foresaid flask or other
vessel, without employing any filler or other instrument adapted to con-
vey the said gunpowder into the said flask or other vessel, free of spill-
ing, and without spreading any cloth or other apparatus on the floor,
in order to keep spilt gunpowder off the said floor ; and this you cul-
pably and recklessly did, although the floor of the said room or kitchen,
or part thereof, where you were, was of stone, and both the said John
M'Dougall, who was standing or sitting beside you, holding the flask
or other vessel, or was otherwise near you, apd you the said Peter
Galloway, or one or other of you, and him, as you well knew, had iron
heels, iron toe-plates, and iron nails, or part of the said iron, in or upon
your shoes, or otherwise had your shoes shod with iron in some manner
to the prosecutor unknown ; and although the risk of a spark of fire
being struck from a stone floor by the pressure or friction of iron there-
on, in consequence of the movement of the feet of one or other of the
said John M'Dougall and you the said Peter Galloway, and said spark
of fire causing the explosion of any gunpowder which might be lying
near, upon the said floor, was a plain and evident cause of danger ;
and although the risk of some .other source of casual ignition reaching
to gunpowder if lying loose upon the floor, and so causing its explo-
sion, was a plain and evident cause of danger ; both and each or one
or other of which causes of danger were obvious to men of common ap-
prehension and ordinary prudence, when keeping or handling or intro-
mitting with gunpowder, and such as any one using due care and cau-
AND CIRCUIT COURTS OP JUSTICIARY. 473
tion in the manner of keeping or handling or intromitting with said No. 76.
gunpowder was bound to avoid ; and some of the foresaid gunpowder, q ji^'^^v
poured out as aforesaid, having fallen down upon the said stone floor, — ;
at or near the feet of you the said Peter Galloway, and the said John pgj,_ 24. '
M'Dougall, or one or other of you, and him ; and some spark of fire or 1851.
other ignition being communicated to the said gunpowder, on or near Culpable
the said stone floor, by the friction of the foresaid iron, which was in Homicide,
or upon one or more of the shoes aforesaid, against the said stone floor,
or by some other source of casual ignition to the prosecutor unknown,
the said gunpowder, lying on or near the floor, caught fire and exploded, ^
and therethrough, also the gunpowder in or near the flask or other vessel
foresaid, as also, in or near the cask or keg or other vessel last above
mentioned, as also, in the cask or keg or other vessel first above libel-
led, or part thereof, exploded with great flame, heat, and violence, and
either by their own explosion or by communicating with and causing
also to explode in like manner, another cask or keg or other vessel,
containing twenty-five pounds weight of gunpowder, or thereby, which
was lying in or near the adjoining premises, then occupied by John
Shanks, then grocer, in or near Alexander Street of Airdrie aforesaid,
and now or lately residing in or near Drumgray or Watstown, in the
parish of New Monkland aforesaid, did so severely burn and scorch or
injure the said William Jaevons in his head and body and limbs, that he
died in consequence thereof, on the day following, or in some other short
time thereafter, and was thus culpably bereaved of life by you the said
Peter Galloway ; and farther, did likewise severely burn and scorch or
injure several of the persona foresaid Who were in or near the said
room or kitchen, or otherwise in or near the premises foresaid of you the
said Peter Galloway, and did greatly endanger the lives of all and
each, or one or more of said persons, particularly the said James Ma;t-
tocks or Maddox and the said Peter Galloway, or one or other of them ;
and moreover, the force and violence of the explosion of the gunpowder
foresaid, did rend and injure the front wall next the street of the fore-
said tenement, part of the foresaid premises of you the said Peter Gal-
loway ; and did beat down or rend and injure one or more of the in-
ternal partition walls, and roofs or floors of the rooms within said tene-
ment, and of the walls between your said premises, and the adjoining,
or nearly adjoining, shop or premises of the said John Shanks.
J. Shaw, for the pannel, objected to the relevancy of
the indictment as charged. The setting forth of the
provisions of the Police Act was plainly intended to be
relied on by the prosecutor as an aggravation of the
offence, charged on common law, but it did not appear
from the statements made, and the subsequent portions
of the minor, that the statute .had been violated, other-
474 CASES BEFORE THE HIGH COURT
No. 76. -wise than in keeping a larger quantity of gunpowder
Galloway, than the statute prescribed, which was punishable by fine.
HighCourt. Besides which, it was expressed to be the duty of the
Feb. 24. , , . , PI.,.,
}8Si. pannel at common law, in the event or his having so large
Culpable a quantity of gunpowder as was sufficient, on explosion,
■ to destroy or greatly endanger the lives of himself or
neighbours, or any of them^^ or to destroy or greatly in-
jure the dwelling-houses of himself or neighbours, or any
of them, to use due care and caution. And, in so far as
this duty was stated in respect to the dwelling-houses,
and in so far as it was said to have been contravened,
in regard to the statute, and results had issued therefrom,
there was nothing in the major to cover the same as laid.
Moreover, it was not alleged that ten pounds weight of
gunpowder would not have been sufficient to produce all
the consequences which ensued from the explosion, espe-
cially, seeing that the quantity ignited by the pannel was
not the causa causans of death. The gist of the case
seemed to be, that the gunpowder had been transferred
from one vessel to another on a stone floor, the pannel
or his assistant having nails in their shoes at the time,
and thereby occasioning explosion in a keg, which in its
turn ignited a still larger quantity, in the shop of Shanks,
being on his part an aggravated breach of the statute,
but for which, on this libel, it might be assumed no bad
consequences would have happened. But that was irre-
concileable with the notion of casual ignition, as charged,
reaching gunpowder lying close upon the floor, a phrase
which would comprehend matters not criminal, and over
which the pannel had no control. Besides, how could
want of caution in respect of the dwelling-houses of
neighbours be covered by a major charging culpable homi-
cide only, the charge as set forth in the minor appearing
to relate to injury of the fabric only, or, at least, being
capable of that construction ?
The Lord Justice-Clerk asked the Crown if they in-
tended to persist in the present indictment, which seemed
to the Court to be so anxiously framed as to comprehend
AND CIRCUIT COURTS OF JUSTICIARY. 475
No. 76.
Peter
more than was necessary, even should the Court be of
opiuion that the acts alleged against the pannel consti- Gaiioway.
tuted a good indictment. A simple recital of the facts ^^^^^^
on which the Crown intended to rely, shewing how the issi."
common law had thereby been violated, would be quite c^^^\e^
sufficient to enable the Court to say whether or not there
had been such recklessness on behalf of the pannel as to
render him an object of criminal justice.
The Solicitor-General withdrew the indictment.^
SOUTH CIRCUIT.
April 16.
JEDBURGH. 1861.
Judffe — The Lord Justice-Clerk.
Her Majesty's ADvocAir— G. Younff A.D.
AGAINST
Jacob Tait, and John Taylor — Aytoun — J. Shaw.
Statute — Foreign Summons — Sertice. — Held that an English Sum-
mons, directed against a Scotchman, for an alleged English ofifence,
must be executed by a Scotch officer, to justify any after proceedings
bad thereon in Scotland, by way of apprehension.
Jacob Tait, labourer or mugger, now or lately resid- No. 77.
ing in Kirk-Yetholm, in the parish of Yetholm, and shire and John
of Roxburgh ; and John Taylor, labourer, now or lately ^^^'"''L
residing in Kirk-Yetholm aforesaid, was charged with ApriiT6."
Deforcement ; as also, the Violently Resisting and Ob- l.^^^'
structing officers of the law in the execution of their ment^'&c.
duty : —
In so par as, you the said Jacob Tait having, on or about the 2d
day of January 1851, at Wooler, in the county of Northumberland,
' No farther proceedings have taken place in this case.
476 CASES BEFORE THE HIGH COURT
No. 76. been duly conyioted before Bichaxd Hodgson, and George Huges, two
and John °^ Her Majesty's Justices of Peace in and for the said county of North-
Taylor, umberland, for that you, the said Jacob Tait did, on the 27th day of
Jedburgh. December, in the year of our Lord, One thousand eight hundred and
^1?!/^' ^^^^^ ^^ ^^^ ^^y *™®' ^^^^ *® *** ^^^' *^°'^* *"^® o'clock in the after-
—i—z noon, at the township of Mindrum, in the parish of Carham, in the
meut &c. county aforesaid, unlawfully commit a certain trespass, on a certain
piece of land situate in the township aforesaid, in the occupation of one
George Thomson, by unlawfully eniering, and being on the said land, in
the search and pursuit of game, without the license and consent of the
owner of the said land so trespassed upon, or of any person having
the right of killing game upon such land, or of any other person hav-
ing any right to authorize you, the said Jacob Tait, to be upon such
land, for the purpose aforesaid, contrary to the force or form of the
statute made and provided ; and it having been then and there adjudged
and ordered by the said Justices of the Peace, that you the said Jacob
Tait, for your said offence, should forfeit and pay the sum of two
pounds, and should pay to Robert Nevins the sum of one pound
twelve shillings and sixpence, for his costs in that behalf; and it
haying been further, then and there, adjudged and ordered, by the
said Justices of the Peace, that if the said several sums should not
be paid forthwith, you the said Jacob Tait should be imprisoned in the
House of Correction at Morpeth, in the said county of Northumberland,
and there kept to hard labour for the space of two calendar months,
unless the said several sums, and the costs and charges of conveying
you the said Jacob Tait to the said House of Correction, amounting to
the sum of two pounds one shilling, should be sooner paid ; and you
the said Jacob Tait having failed to pay the «aid several sums, and the
said Justices of the Peace having in consequence issued their warrant
of commitment, given under their hands and seals, on the 2d day of
January, in the year of our Lord 1851, at Wooler, in the said county
of Northumberland, commanding the constable of the parish of Carham,
in the said county of Northumberland, to whom the same was directed,
to take you the said Jacob Tait, and you safely to convey to the said
House of Correction at Morpeth aforesaid, and there to deliver you to
the keeper thereof, and also commanding the keeper of the said House
of Correction, to whom the warrant of commitment was also directed
to receive you the said Jacob Tait, into his custody in the said House
of Cprreetion, there to imprison you and keep you to hard labour for
the space of two calendar months, unless the said several sums and the
costs and charges of conveying you to the said House of Correction,
amounting as aforesaid to the farther sum of two pounds one shilling,
should be sooner paid ; and you the said Jacob Tait, having escaped or
gone to, or being resident at, Kirk-Yetholm, in the parish of Yetholm,
in the county of Roxburgh in Scotland, and John Johnson, then con-
stable of the parish of Carham, in the said county of Northumberland,
AND CIRCUIT COURTS OP JUSTICIARY. 477
or then and now or lately superintendent constable for Glendale Ward No. 77.
in said county, and now or lately residing at Wark, in the said parish ''*? j ^^*
of Carham, having brought the foresaid warrant of commitment to Taylor.
Robert Oliver, Esquire, of Lochside, one of her Majesty's Justices of Jedburgh,
the Peace of the said county of Roxburgh ; and the same having been ■*■?«'! /^'
duly endorsed by him, on or about the 16th day of January 1851, to
the effect of authorizing the said John Johnson, and all peace-officers jjjgjjt ^g_
of the said county of Roxburgh,- to execute the same in the said county
of Roxburgh ; and the said John Johnson, accompanied by Archibald
Anderson, constable, residing at or near Town-Yethoira, in the parish
of Yetholm, and county of Roxburgh, and George Curie, constable, re-
siding at or near Morebattle, in the parish of Morebattle and county
of Roxburgh, both peace officers of the said county of Roxburgh,
having on the 20th day of January 1851, or one or other of the
days of that month, or of December immediately preceding, or of
February immediately following, proceeded to the house at or near
Kirk -Yetholm aforesaid, then and now or lately occupied by you, the
said Jacob Tait, or in which you then resided, for the purpose of putting
the foresaid warrant of commitment, endorsed as aforesaid, in execution
against you, the said Jacob Tait : You the said Jacob Tait and John
Taylor did, both, and each or one or other of you, then and there,
wickedly and feloniously, attack and assault the said John Johnson,
Archibald Anderson, and George Curie, and did seize hold of them, oj
one or more of them, and did, by menaces and threats of violence, and
by threatening to beat them with a stool and with a poker, and with
a bludgeon or pailing-stob, which you brandished at them in a threaten-
ing manner, and by threatening to shoot them, and by proceeding to
get guns or other fire-arms ready for that purpose, or by some of these
means and other the like violent procedure on your part, succeeded in
driving the said John Johnson, Archibald Anderson, and George Curie,
from the premises, and in forcibly preventing them from executing the
foresaid warrant of commitment, endorsed as aforesaid ; by all which,
or part thereof, the said John Johnson, Archibald Anderson, and
George Curie, were deforced, or at least violently resisted and ob-
structed in the execution of their duty; and all this you the said
Jacob Tait and John Taylor did, well knowing that the said John
Johnson, Archibald Anderson, and George Curie, were officers of the
law engaged in the execution of their duty as above libelled.
J. Shaw objected to the relevancy of the libel, in so far
as the alleged offence, which consisted of a mere con-
structive assault, by means of words, was used against
oflScers proceeding under a warrant granted by Justices
of the Peace in Northumberland for an offence against
the game laws. He maintained, that such a warrant
478 CASES BEFORE THE HIGH COURT
No. 77. was not indorsable in Scotland, and consequently being
and John scpved out of the jurisdiction was a nullity. The principle
^^^''"'' was, that the power to indorse English warrants (which
Apri" 16.' was entirely statutory) was applicable to cases of crimes
^"^'' or indictable offences only. The late statutes 11th and
mix. 12th Vict. c. 42, and 11th and 12th c. 43, had made no
alteration in the matter.
Young A.D. — Without entering on the old law, it is
plain under the recent statutes 11th and 12th Vict. c. 42
and 43, § 13, that these proceedings are regular. These
taken together, completely shewed that the Justices in
Scotland had authority to indorse in cases like the pre-
sent.
The objection was repelled.
The following evidence was then adduced : —
i. John Thomson, Law Clerk to the Justices of the Peace of the East
Ward of the County of Northumberland. — ^I was present at "Wooller
on 2d January. The prisoner was convicted under the statute in ab-
sence. His mother appeared. This is the judgment and warrant of
commitment. These are signaturesof the Justices of the Peace. He
was convicted under 1st and 2d "Will. lY. § 30. The warrant of com-
mitment was under 11th and 12th Vict. c. 43, Sir John Jarvis' act.
It is a due and legal conviction under the law of England, and warrant
of commitment also, John Johnstone was constable of the parish.
Cross-examined. — A summons was issued and served personally —
at least constable swore to it at the hearing. It was served at Yetholm.
Can't say date of service. Not on day of conviction — I should think a
week before.
John Johnstone, Superintendent constable of county of Northumber-
land.— In January wasin Carham. Got warrant of commitment libelled.
I went to see the Justice, Mr Oliver of Lochside, 16th January. I see
indorsation. On 20th January I got assistance and went to Kirk-
Yetholm. Archibald Anderson and George Curie, Roxburgh con-
stables— ^went to Tait's, quarter after seven in morning. He was in
bed. I told Wife my errand. I read the warrant. I heard a great noise.
Tait had a footstool in hand. Before a gun in his hand, wife spoke-
she said, you — there are 5 loaded guns in house. You shall have
advice from Jeflfrey to shoot any one of you who resist. Taylor seized
po^r and waived it back and forwards -before officer's face. Tait
said he would split officer's head, called for aid, and wife called for
Taylor to come down, and come down with guns. I heard great
noise, and heard, I thought, ramrod working in gun. I know Tay-
ment, So.
AND CIRCUIT COURTS OP JUSTICIARY. 479
lor's room — he was in that room alone. I then saw John Taylor, the No. 77.
prisoner, come down stairs. He came in shouting, ' murder them.' He ^?'<f^ Tait
had nothing at first in his hand ; hi5 had a piece of firewood in his hand ; Taylor.
length and thickness of one's arm ; raised as if to strike Anderson ; this jedtmrgi,
was when his back was to him. I shoved him back. Taylor swore at April J 6.
me to keep my hands off. Tait seized Anderson by the breast '
and tried to throw him down : There were several cries to murder, Deforce-
chiefly by Taylor's wife, and Taylor cried to call for more aid. I
saw a gun -in Taylor's house hanging by side of wall, Taylor's wife
made a grasp. I had Taylor in custody. He struggled. I saw the
gun capped. I let him go and took hold of her to prevent her taking the
'gun down. I heard like the snap of a gun on Taylor's stair. Still Taylor
and his wife sang out to murder. 1 took out my stafl', and said I would
knock down the first who attacked Anderson. They were seizing hold of
him. The violence was chiefly against Anderson, some others were
in, eight, chiefly women. Anderson sang out to quit the house. I con-
sulted both before leaving.
Cross-examined. 1 told Anderson to draw his baton when I pulled
out mine. Anderson was at the door.
Aytoun then objected, that inasmuch as it had come
out in evidence that the original summons, on which all
the proceedings rested, had been served in Scotland
by an English officer, such service was bad, and being
bad, all conviction following thereon was bad also. If
that were so, the parties were justified in resisting men
who came with the avowed purpose of carrying them to
prison under an illegal warrant.
Young. — The warrant has been proved to have been
a good and regular warrant. It was good where issued,
and must be held to have been indorsable ; here it was
indorsed, and it is for resistance to the execution of this
warrant, that we bring the present charge. It was a
warrant proceeding on a conviction irreversible in Eng-
land, and it would place police officers in a very awkward
position were they liable to be thus assaulted, in respect
of a defect of which neither they nor the party assaulting
had any knowledge.
The Lord Justice-Cleek — Held, that the objection to
the mode in which the summons was served was fatal.
No one but an authorized Scotch officer was competent
to serve process in Scotland. It would have been easy
to have got the summons served by a Scotch officer. But
2i
480 CASES BEFORE THE HIGH COURT
No. 77. that was not done. It followed therefore, that they never
Jacob Tait . . . .
and John were duly summoned, and if so, no conviction in absence
^^°^' proceeding thereon could stand, or receive any legal efFect.
ApriiTs.' Most likely the pannelsknew nothing of this at the time ;
1— but that did not at all interfere with the law. His Lord-
ment, &c. ship therefore directed the Jury to acquit the prisoners
on the grounds he had stated.
The Jury acquitted the pannels.
In respect of which verdict of assize, the pannels were
assoilzied simpliciter, and dismissed from the bar.
DUMFRIES.
^I'ssi^ J^i«(?^«s — The Loed Justice-Clbek and Lord Wood.
Prosecctor — Practice. — Ciroumstancea in which the Court swore
in, pro re nata, the former Advocate-depute as Counsel for Her
Majesty.
After the usual procedure, at the opening of this Cir-
cuit, the record bears, that, —
' In respect that the Court has been informed that Mr Andrew
' Rutherfurd has resigned his oflBce of Lord Advocate, and, consider-
' ing that the indictments for trial at this Circuit Ayre have been duly
' raised and served at the instance of Mr Andrew Rutherfurd, when
' Her Majesty's Advocate, for Her Majesty's interest, and now stand
' for trial at this Circuit Ayre, the Lord Justice-Clerk and Lord
' Wood nominate and appoint Mr George Young, Advocate, who held
' the office of Advocate-Depute by commission from the said Mr An-
' drew Rutherfurd, as Counsel for the Crown, to conduct the said pro-
' secutions for Her Majesty's interest.'
' J. Hope, I.P.B.
' And Mr Young having taken the oath defideli, he was admitted
' to the execution of his office.'
T. F. Smith, Appellant— y. Shaw.
AGAINST
W. Skinner, Respondent — G. Young.
Appeal — Landlord and Tenant — Sequestration — Interdict. —
Circumstances in which an application by a tenant for interdict
against a threatened sale of his effects, under a process of sequestra-
tion by the landlord, was held incompetent.
AND CIRCUIT COURTS OF JUSTICIARY. 481
This was an appeal from a decision of the Steward-sub- No. 78.
stitute of the stewartry of Kirkcudbright, dismissing a skinner.
process of interdict at the appellant's instance. Dumfries.
The circumstances out of which the case arose were im.'
as follows : Appeal.
Smith was tenant of the respondent for a house of the
value of £25 a-year. Prior to the Whitsunday term
1850, Smith being in arrear of rent, the landlord seques-
trated for the past as well as current half-year. On a
partial payment, however, to the extent of £18 or thereby,
Smith was allowed by the landlord to remove his furni-
ture to another house, which he had taken at some dis-
tance from the former one, at Whitsunday 1850. The
respondent some months afterwards advertised the ap-
pellant's goods for sale, on his new premises, for the pur-
pose of enforcing payment of the balance due of his former
rent. Smith presented an application for interdict, to
prevent the sale being carried through. The Steward-
substitute granted interim interdict, and allowed a proof
of the allegations contained in the petition within four-
teen days. In consequence, as was alleged by Smith, of
the illness of a material witness, and other causes, he was
unable to complete his proof within that time, whereupon
the Steward-substitute, circumduced the term, recalled
the interim interdict, and found Smith liable in expenses.
It was against this judgment that the present appeal
was brought.
J. Shaw, for the appellant, contended, that the circum-
stances shewed that the appellant was entitled to a remit
from the Court to the Steward, to give him time to en-
able him to complete his proof, 1st, The petition for in-
terdict was competent and relevant, inasmuch as the pro-
cess of sequestration had been broken, with consent of
the landlord, by the removal of the goods to the appel-
lant's present premises. 2d, It was incompetent for the
landlord to advertise a sale on the premises then occupied
by the appellant ; and, 3d, More than three months had
been allowed to elapse after the goods had been removed
to the appellant's new house. Bell's Prin. § 1277.
482 CASES BEFORE THE HIGH COURT
No- 78. Young, for the respondent. — The whole process of in-
skinner. terdict was inept and incompetent. If there was any
Dranfriea. iri'egularity in the^mode in which the sequestration was
1851.' sought to be carried into effect, the proper course was, to
Appeal, have applied in the process of sequestration for a stay of
proceedings. The Steward had full power, when a dili-
gence proceeded from his own court, and could at once
have interfered, and prevented any irregularity. He
could also have interfered in that process, and recalled the
sequestration altogether, in case he had found that the
respondent had effectually waived his right to insist farther
therein. The process of interdict was therefore useless
and incompetent.
The Lord Justice-Clerk. — I think this appeal must
be dismissed, without indicating any view as to whether or
not sufficient time was allowed the appellant to prove his
averments. I think in this case, there was no rele-
vancy in the original application for interdict. It is ad-
mitted that the sequestration was originally well and re-
gularly obtained ; and that at the period of the attempted
sale the landlord had not been fully paid. Whether or not
he was entitled to proceed farther after tbe lapse of time,
or whether he could have sold at the place advertised, it
is unnecessary to consider, as all this would have been
determined by the Steward on a proper application in the
sequestration process, which was undoubtedly a competent
one, had proper application been made therein.
Lord Wood. — I cgncur. It is important to prevent
undue multiplication of processes, and I can discover no
reason in this case why the appellant could not have ob-
tained everything he could have desired in the process of
sequestration, though, at the same time, I would wish to
guard myself against being held to lay it down distinctly,
that in no case is a process of interdict competent to stop
a sale under a sequestration. Such a case however must
be a very special one, and I see nothing to justify that
procedure here.
Their Lordships dismissed the appeal, with expenses.
AND CIRCUIT COURTS OF JUSTICIARY. 483
HIGH COURT.
Present, J™|,2.
The Lord Justice-Clehk,
Lords Cockburn and Ivory,
Heu Majesty's Advocate — E. F. Maitland A.D. — Cleghorn A.D.
AGAINST
John O'Neill — Orr.
Indictment — Pannel — Identity. — Objection, that a pannel designed
as present prisoner in the prison of Glasgow, could not be called on
to plead to the indictment, in respect that there was another prisoner
indicted for trial at the same Circuit, of the same name, and simi-
larly designed-!-repelled.
At the Glasgow Spring Circuit, 1851, John O'Neill, no. is.
designed as ' prisoner in the prison of Glasgow,' was o'Nei" .
charged with the crime of Theft, aggravated by previous High Court.
conviction. "^issi?'
Oer objected to the pannel pleading to the present - ^1^^^"
indictment, in respect that there was another prisoner in-
dicted for trial at the Circuit, of the same name, and
similarly designed.
Lord Tvory, in respect of the foregoing objection,
certified the case to the High Court of Justiciary.
The diet having been called this day, —
Orr, in support of the objection, referred to Hume on
Crimes, vol. ii. pp. 159, 160 ; John Robertson, April
1824, Shaw, p. 123 ; John Carruthers, Sept. 15, 1827,
Shaw, p. 212 ; Thomas Robertson, Glasgow, Sept. 29,
1837, Swinton, vol. i. p. 547 ; Bell's Notes to Hume,
p. 170.
The Court pronounced this interlocutor : —
' On the report of Lord Ivory, and having heard the
' counsel for the pannel, the Lords repell the objection ;
' and, on the motion of Her Majesty's Advocate, desert
' the diet against the pannel pro loco et tempore.'
484 CASES BEFORE THE HIGH COURT
Present,
18S1.' The Lord Justice-Clerk,
Lords Wood and Colonsay.
Her Majesty's Advocate — Sol.-Gen. Cowan — G. Young A.D.
AGAINST
Thomas Hogg — W. E. Aytoun — J. Shaw.
Murder — Medical Jurisprudence. — Circumstances in which a
pannel was acquitted of Murder.
Th°omas Thomas Hogg was accused of Murder :
Hogg.
High Court. In go FAR AS on the 12th day of February 1851, or on one or other
1861.' 0^ ^^^ ^^y^ °^ *^^* month, or of January immediately preceding, or of
jj , March immediately following, in or near the house called the Boat-
house, in the parish and county of Roxburgh, then occupied by yon,
or in which you then resided, you the said Thomas Hogg did wickedly
and feloniously attack and assault the now deceased Agnes Laidlaw or
Hogg, your wife, and did, with your hand or hands, or with some kind
of ligature to the prosecutor unknown, violently compress or press upon
her throat, or did violently press her throat against some piece of furni-
ture, or other hard substance to the prosecutor unknown, and did there-
by, or in some other manner to the prosecutor unknown, strangle or
suffocate the said Agnes Laidlaw or Hogg, in consequence whereof
she immediately or soon thereafter died, and was thus murdered by you
the said Thomas Hogg.
The general evidence in the case was, that the de-
ceased (who was the pannel's wife) had been seen going
about in the morning, and was also seen on the bed, with
her clothes on, along with the prisoner, about half-past
ten, on the day of her death.
The witnesses who so saw her, being neighbours, heard
of her death about eleven. The witnesses who were
called in and saw her during the day, spoke to there be-
AND CIRCUIT COURTS OP JUSTICIARY. 485
ing no protrusion of the eyes, or other of the ordinary No. so.
symptoms of strangulation. Hogg.
The prisoner, in his declaration, attributed her death HighCom-t.
to falling against a sharp-edged chair, from a blow 'by jssi.
him. The main question was, had the prisoner strangled Murder.
her manually, and so broken the larynx ?
The medical evidence was as follows : —
Charles Wilson, M.D. — I have been twenty- two years a medical
man in Kelso. I made a report. This is it. It is as follows : —
'On the afternoon of the 14th February 1851, I proceeded to the
' cottage at Roxburgh Boats, by desire of the procurator-fiscal of the
' county of Roxburgh, in order to examine the body of Agnes Hogg,
' a woman who was reported to have died two days previously.
' I found the body deposited in a coffin, which was opened in my
' presence. The grave clothes having been removed, the under shift,
' such as is usually worn by women, was observed to be extremely
' soiled with faeces at its lower and back part. The deceased seemed
' to have been about 30 years of age ; and the body was in no respect
' emaciated, but generally of a plump and healthy appearance.
' On proceeding to a more special examination, I remarked that both
' the ears, the whole of the right cheek, and the lower part of the neck,
' over the collar bones, were of a deeply livid colour, lightest, however,
' on the neck. The whole of the back was overspread with a paler
' lividity, such as is usually the result of gravitation of the blood in the
' dead body. The eyes presented a pale red suffusion. There was a
' contusion on the right side of the forehead, of a circular form, and
about an inch in diameter. There was a yellowish-brown mark, hard
and parchment-like, about an inch and a half in length, by half an
• inch in breadth on the left side of the chin, running along the lower
' margin of the jaw ; and another similar mark, of nearly equal dimen-
' sions, the skin feeling thickened, hard, and corrugated, passed trans-
' versely across the throat, immediately over the larynx. To the right
' of this mark, and on the same line with it, there was a smaller detached
' spot of like appearance. The fingers were semi-contracted, and
' rigid ; and there were traces of blood which had flowed from the right
' nostril.
' On removing the integuments from the site of the oblong mark on
' the chin, there was observed a distinct extravasation of blood in' the
' cellular tissue beneath ; and there was also slight effusion under the
' bruise on the forehead. The skin on the front of the neck and the
' superficial muscle (Platytma myoides) having been reflected, the
' other muscles in the vicinity of the wind-pipe (Sterno-hyoid, Sterno-
' thyroid, and Omo-hyoidJ especially those portions contiguous to the
486 CASES BEFORE THE HIGH COURT
No. 80. ' larynx, and on the left side, were found of a much darker colour than
l^omaa (, natural, and darker than the adjacent muscles, as if their substance
'^ ' had been gorged with venous blood. There was an extravasation of
High Court, i \yioQ^ into the substance of the left omo-hyoid muscle, a farther ex-
1 85 1. ' ' travasation lower down on the same side, between the jugular vein and
Murd^ ' *^® wind-pipe, also in the left sterno-mastoid muscle, near its
' origin, and in the cellular substance beneath the platysma my-
' oides. On proceeding deeper, blood was also found effused over
' the cartilages of the larynx, still chiefly on the left side ; the thyroid
' gland on the same side, was largely infiltrated, and the effusion here
' extended around and beneath, passing behind the wind-pipe and larynx
' to the gullet, so as to occupy a space, in the aggregate, of several square
' inches. A line of extravasated blood proceeded also upwards and
' backwards from the side of the larynx to the angle of the lower
' jaw.
' On dividing the wind-pipe, it was found to contain a quantity of
' frothy mucus. In the interior of the larynx, there was a consider-
' able extravasation 6i blood lying beneath the investing membrane ;
' and passing up both sides and behind as far as the chink of the glottis,
' or orifice by which the air is admitted into the wind-pipe ; and above
' that opening into the ventricles of the larynx. There was also a
< fracture of the right wing of the thyroid cartilage, by which its lower
' horn was wholly detached ; and the cricoid cartilage was broken in
' two places, at opposite sides of its ring.
' The veins in the neck, both the smaller and larger ones, communi-
' eating more directly with the heart, were everywhere turgid with
' blood, in an entirely fluid state.
' On proceeding to lay open the cavity of the chest, there was dis-
' covered a thin layer of extravasated blood, occupying a considerable
' space, lying below the left mamma and the greater pectoral muscle,
' and passing forwards to near the sternum. No mark of contusion
' corresponding to this could be discovered externally. Within the
' cavity of the chest itself, there was no mark of disease or injury ob-
' servable, unless that the lungs, especially on the right side, appeared
' dark coloured, and much congested with blood. There was no effusion
' within either the pleura or pericardium, and the heart, with its valves,
' was in a healthy condition.
' In the brain, there appeared to be a considerable congestion of the
' vessels ramifying on its surface ; and on cutting into its substance, the
' medullary part was found thickly studded with bloody points. There
' was neither fracture of the skull, nor appearance of extravasation of
' the blood within, or upon the brain. The ventricles contained about
' three drachms of clear serum ; and at least double the quantity was
' afterwards observed at the base of the skull.
' In the abdomen, the intestines were found considerably inflated,
' and generally congested, especially the stomach, jejunum and ilium.
AND CIRCUIT COURTS OP JUSTICIARY. 487
the latter presenting also occasional livid patches. The stomach con- No. 80.
tained about 8 oz. of a gruel-like fluid. There was no effusion or ij3e^
adhesion, or other morbid appearance discernible, unless that the liver •
' appeared slightly enlarged, and in parts of a somewhat paler colour ^„e 9.
' than natural. The urinary bladder was empty. 186).
' From a review of these details, it seems impossible to resist the Murder.
' inference that death in this instance has been produced, in some way
' or other, through means of a violent compression or constriction of
' the throat ; the condition of the larynx and of the parts contiguous,
' evincing this directly, while the state of the system generally, and all
' other circumstances, appear fully consistent with such a conclusion.
' This I certify upon soul and conscience.'
(Signed) Charles 'Wilson, M. D.
' Kelso 15tk February/ 1851.'
I adhere to that report. I think the injuries on the throat were caused
by external causes. External violence only could have caused them.
Death might be caused thereby. I have seen cases of suicide by hang-
ing. I cannot say if I ever examined the larynx. In this case they
are greater than in other cases of strangulation. 1 can conceive the possi-
bility of a fall causing these injuries to the larynx, — fromjexternal causes,
very rarely. Injury to the extent described in this case, I think, cannot
have happened from a single fall, nor from ordinary falls. Compres-
sive force must have been continued until death.' If the body had been
in a sitting posture, she could not have inflicted such injuries as I have
described on herself, by falling. It was not a case of suicide. I saw the
pannel. He made a statement to me. I paid no particular attention
to him. He said he had struck her. I repeated. Did yon strike ? He
said, I did ; and she fell in the kitchen.
Cross-examined. — This was about two on the Friday. The body
would not have undergone any considerable change since the 'Wednes-
day. There was no putrid change. Any change which would take
place at such a period is easily distinguished.
I never saw a case of fractured larynx, the cases are so extremely
rare ; they hardly ever take place. I cannot say if it could be pro-
duced by a fall ; the muscles are close to it. There was congestion on
the brain.
To the CoTTBT. — A case of fracture from external injury is very rare.
There are only three or four cases known, and those occasioned by
severe injuries. Ulceration might cause it. There could be fracture
from internal causes. I cannot conceive a fall of the head of a drunk
person hanging down to produce it ; the injuries were very extensive.
Breaking the neck could not^cause fracture of the larynx. Compres-
sion alone, in my opinion, could fracture the larynx. Manual compres-
sion, I think, might. Congestion accompanies strangulation ; slight,
but distinct suff'usion, often accompanies strangulation. I do not
488 CASES BEFORE THE HIGH COURT
No. 80. think that suffusion would take place after death. The eyes were
''hos^^ not protruded, as usual in cases of strangulation. I would say, they
— '— were slightly suffused. I did not ask him when he struck her. I had
^ne°9.^ ■ heard a vague suspicion of a blow having been given. The mark on
1851. the head appeared recent and contemporaneous with the other injuries.
Murder. Henry Vost, Surgeon. — I examined the body along with Dr Wil-
son, and concur in the report. There must have been very great vio-
lence required to produce the injuries. I think no fall could fracture
the larynx ; the external marks were not such as a fall could produce.
The injury on the left breast was such as if a heavy weight had rested
thereon, — not like a blow. This was not a case of suicide ; no suicidal
injuries would fracture the larynx. A person being drunk, and hav-
ing a heavy fall, might produce the injury to the larynx.*
' The general facts of the case have been as above indicated, and
this case is reported partly in consequence of evidence which was ex-
pected to be led in defence, and as to which a list of witnesses had been
given in, as to the impossibility of fracture of the larynx being occa-
sioned by compression of the hand, unless there had been ossification.
On the day previous to the trial, however, it was discovered this was
possible, by means of experiments on young subjects, and consequently,
no witnesses were called for the defence.
The Reporter has been favoured with the following note from Dr
Keillor, Lecturer on Medical Jurisprudence, who, with Dr W. T.
Gardner, Pathologist to the Infirmary, conducted the experiments : —
30 Northumberland Sisiekx,
April 25. 1852.
My Dear Sib,
In answer to your queries respecting fracture of the larynx,
I beg to state, that, with the view of determining, by actual experi-
ment, the important question which was brought out on the occasion of
the trial of Thomas Hogg before the High Court of Justiciary, in June
, last, I lost no time, on the matter being referffed to me, in performing
several experiments on the dead body, the results of which were to my
mind perfectly conclusive, as to the possibility of fracturing the larynx
by mere manual force.
The experiments on that occasion were three in number, and were
performed on subjects of different ages, in all of which the thyroid
aud cricoid cartilages, together with the hyoid bone, were broken by
violently grasping the throat, and forcibly compressing the larynx.
I have since then repeated these experiments, on two subjects, and
with the same results, — the hyoid bone and cartilages of the larynx be •
ing, in one instance, readily enough fractured by the forcible applica-
tion of one hand only ; in the other, however, that of a large and powfer-
fully developed man, the violent grasping of both hands was found to
be necessary to produce the injuries inflicted.
AND CIRCUIT COURTS OF JUSTICIARY. 489
The Jury found the prisoner Not Guilty. No. so.
J ^ J Thomas
Hogg.
In respect whereof,, he was assoilzied simpliciter, and HighCourt.
dismissed from the bar. issi.'
Murder.
On carefully removing and examining the parts involved in one of
these experiments, the injuries sustained by the osseous and cartilagi-
nous structures of the throat, so completely corresponded with those
reported by Drs Wilson and Vest, as having been observed in the
post-mortem examination of the body of Mrs Hogg, that I took care
to preserve the fractured larynx and appendages, for the purpose
of illustrating my lectures in reference to this exceedingly important
question.
The degree of violence used in the performance of these experiments
was necessarily great, and that, too, applied in the direction most likely
to produce the various fractures found ; nevertheless, I cannot but en-
tirely concur in the opinions expressed by Drs Wilson and Vest, as to
wilful forcible compression being, in all cases, much more likely than
falls or other accidental injuries, however severe, to cause fractures of
the larynx, &c., such as were found in the case of Hogg.
As, however, the settling of this question may involve the most im-
portant and serious considerations, in regard to other charges of homi-
cide by strangulation, I purpose availing myself of other opportunities
of more fully testing the whole matter, with the view of ascertaining '
more accurately the actual kind and degree of manual force required
to produce fractures of the larynx, and of determining whether similar
lesions of that organ can be readily effected by external injuries other-
wise applied.
So soon as I am in possession of facts, suflSciently abundant and im-
portant to justify me in giving them farther publicity, you may rely on
my doing so ; meantime, you are welcome to make any use of this com-
munication that you may deem proper. Believe me, my dear Sir,
yours faithfully,
ALEX. KEILLER.
J. Shaw, Esq., Advocate.
490 CASES BEFORE THE HIGH COURT
Present,
June 1 6. The Lord Justice-Clerk,
18S1.
Lords Cockbubn and Colonsay,
Her Majesty's Advocate — Lord Advocate Moncreiff—
Q. Young A.D.
George Black Pyott. — Craufurd.
AND
W. B. Pyott. — Logan.
FiBE-RAisiNG — Proof — Complicity — Art and Part.— Direction to
a Jury, that wheie two persons were indicted for a criminal act, it
would not be enough to warrant a conviction against either, that the
Jury should be satisfied that it was committed by one of the two, unless
the Jury could say by which, or were prepared to aflSrm, by a ver-
dict against both, that they were alike guilty.
No. 81. G. B. Pyott and W. B. Pyott were accused of Wil-
is. B. Pjott
and w. B. ful Fire-raisiHg :
Pyott.
June °T'* -^^ ^° "^^^ ^■> y°^ ^'^^ ^^^*^ George Black Pyott and William Black
1851. Pyott being, time hereinafter libelled, tenants of a warehouse or other
Wilful premises, situated in or near Saint Anthony's Court, at or near Saint
Fire-Rais- Anthony's Street of Leith, in which warehouse or other premises you
carried on business as commission-agents and merchants, or otherwise,
and there kept certain goods In connection with your business foresaid,
you the said George Black Pyott and William Bliack Pyott, on the
15th or 16th day of March 1851, or on one or other of the days of
that month, or of February immediately preceding, or of April imme-
diately following, did, both and each, or one or other of you, wilfully,
wickedly, and feloniously, set fire to the said warehouse or other pre-
mises, by applying some lighted or ignited substance to the prosecutor
unknown, to combustible materials, particularly paper, and straw, and
some pieces of wood, and a wooden tray or box, and other combustible
materials to the prosecutor unknown, or part thereof, collected or lying
in four several places, or in one or more places, within said warehouse
or other premises ; a part of said combustible materials being inside of
AND CIRCUIT COURTS OF JUSTICIARY. 491
both and each, or one or other of two barrels j and castor oil, or some No. 81.
other oil to the prosecutor unknown, having previously been put upon ?'w^b*
or near the foresaid combustible materials, or part thereof ; and the fire Pyott.
thus wilfully, wickedly, and feloniously, set or applied, did take effect. High Court,
and did burn or destroy part of the door between two warerooms with- June 16.
1 ftM
in the said warehouse, or other premises ; As also, part of the lintel of.
said door ; As also, part of the joists, and of the roof of both and each, „.^'^"1
or one or other of the said two warerooms ; As also, part of a counter ing.
in one of the said warerooms, and part of some shelves and their sup-
ports, in both and each, or one or other of said warerooms ; and the
said fire was thereafter discovered, and by the exertions of well-dis-
posed persons, was subdued and extinguished : Or otherwise, time
and place above libelled, and in manner above libelled, you the said
George Black Pyott and William Black Pyott did, both and each, or
one or other of you, wilfully, wickedly, and feloniously, attempt to set
fire to the said warehouse or other premises.
A great variety of evidence was led, tending to shew
that the fire must have been occasioned by the wilful act
of an incendiary ; also to prove that the pannels had
insured their stock and premises to far more than they
were worth, and that they were left together in the ware-
house. A plan of the premises was also produced. The
following exculpatory evidence was led.
James O. Thallon. — I live in Leith. I know the pannels ; their
character is good, nothing against it. I know they received orders for
castor oil : they expected it. It was first filtered, and then bottled.
I saw some in course of filtering on the Tuesday in the premises in
Quality Street. They had formerly smaller premises by a great deal.
I made a suggestion that they should insure to a larger amount, if
they meant to have larger premises.
By the Court. — I knew W. B. Pyott eighteen months ago. George
joined the business about four months before the fire. W. B. Pyott
was in business about four months before that.
Datid a. Pyott. — I am brother of the pannels. I am eighteen
years of age. I assisted in my father's shop at the time of the fire.
My father is a grocer. I remember the Saturday night my two brothers
came home about seven, and left about half-past nine. They then went
to go home. The house is close by. We shut about twelve. My brothers
were then in bed. I went to bed. My brothers slept in the room between
kitchen and parlour. The wall of my room is of lath and plaster. The
outer door was locked. The lock makes a noise when opened. I heard
no noise as if door opened. I saw my two brothers at breakfast, at
half-past nine. There was nothing in their conduct or appearance pe-
492 CASES BEFORE THE HIGH COURT
No. 81 . culiar, that I observed. There was an alarm given. A po'rter came.
^ d W^B* ^® S°* ^^^ keys. One of them gave the keys to the porter. He got
Pyott. up at once and gave them. My brothers expected an agency for rice
Hieh Court ^'°™ ^ house in Liverpool. I saw William writing out securing to
June 16. get a large stock of that article. Both my brothers went to the ware-
house, in a few minutes after the news of the fire came. I was up be-
Wilful foie them. They were dressing ; one was shaving. The books were
inn-. got. I took them to my aunt's, close to the premises. They were
afterwards given to tha officers. ,
Cross-examined by the Lord Advocate. — They staid a quarter of
an hour on the Saturday evening, when they first came in, and they
told mother to send home something for supper. They got supper.
We understood they were going home. They kept the keys of the
premises in their own bed-room. There were two doors to the room
they slept in. They kept the keys. William Pyott gave them when
they were asked for.
By the Court. — They did not mention where they were going at
seven, nor did they mention at half-past nine where they had been.
EuPHEMiA Cameron. — I lived in March last with Mr Pyott. I
remember the Saturday evening of the fire. Both brothers came home
about half-past nine. They got their supper and went to bed. I
cleaned their boots, and took them out of the room. I had no reason
to suspect that any one went out of the house during the night. The
boots had not been used.
The Lord Justice-Clerk, in charging the Jury, said,
it had been, during a great part of the trial, matter of
grave doubt to the Court, whether they should not
have been bound to direct the Jury to acquit the pannels,
on the ground that it was not distinctly disclosed in the
evidence for the Crown (assuming that one of the pan-
nels was guilty), which of the two pannels was guilty, or
both. This raised a grave question, for, if comrnitted by
one only, and the Jury were uncertain which, it would
have been their duty to have acquitted both, inasmuch
as they could not have returned a certain verdict. All
difficulty, however, seemed to be done away by the course
the case had taken, as the two brothers were traced to-
gether, from the locking up on the Saturday evening,
until the discovery of the fire on the Sunday morning.
The Jury would therefore consider them as alike, either
guilty or innocent.
AND CIRCUIT COURTS OF JUSTICIARY. 493
The Jury, by a majority, found the pannels Guilty as No. si.
libelled. and w. b.
Pyott.
In respect of which verdict of assize, they were sen- june j e! '
tenced to be transported for the period of fourteen years. _}^
Wilful
Fire-Rais-
ing.
NORTH CIRCUIT.
PERTH.
Autumn 1851.
Judges — The Lord Justice Clerk and Lord Wood.
John Wilson, Appellant — Kinnear.
AGAINST
Alexander Watson, Respondent — Gifford.
Appeal — Competency — Interdict. — Held, that an appeal to the
Circuit is competent against a judgment in an action of interdict.
Opinion — ^That in all cases an appeal to the Circuit is competent,
unless the party objecting can shew that the subject-matter at issue
exceeds the sum of £25 sterling ; and that the onus of proving this
lies upon the objector.
This was an appeal from the judgment of the Sheriff ^,°;^^;
of Fife, in an action of interdict, at the instance of an "Watson.
heritable creditor against a personal creditor, who at- ^^^}\'
tempted to carry off, by poinding, moveables on the ^ssi-
ground of the property included in the heritable bond. Appeal.
The poinding was for the sum of £6, interest and ex-
penses ; but the poinded articles, it was said, greatly ex-
ceeded that amount in value.
Watson, the heritable creditor, applied for interdict
against the poinding being carried out, and having ob-
tained an interim interdict, immediately thereafter
brought an action of poinding the ground ; whereupon
494 CASES BEFORE THE HIGH COURT
No. 82. the Sheriff, in respect of the poinding of the ground, de-
Wilson Vt X X <-»
Watson.' clared the interdict perpetual, and found the heritable
Perth, creditor entitled to his expenses.
1851.' Wilson, the personal poinding creditor, appealed to
Appeal, the Circuit, and the case was argued before the Lord
Justice-Clerk.
GiFFOED, for Watson, objected to the competency of
the appeal, on the ground that the action was ad factum
prcBstandwn, and, as, such, not one of the cases reviewable
by the Circuit Court under the Jurisdiction Act. He
submitted that the competency must be decided by a re-
ference to the conclusion or prayer of the original petition,
and that petition contained no conclusion for any specific
sum, so as to shew that the subject-matter was under the
value of £25, but merely a general conclusion for inter-
dict against the poinding of certain moveable subjects.
In support of this objection he referred to Davidson v.
Russell, Nov. 21, 1812, F. C; Wilson v. Addison, Perth,
Oct. 11, 1845, Broun, vol. ii. p. 519. ; Glass v. Thou,
April 24, 1848, Arkley, p. 468, and cases there referred
to. The case of Glass, was, he submitted, strictly analo-
gous to the present, for there, that which in the schedule
of poinding was valued at only £11, was claimed by a
third party as his property. The Sheriff sustained the
claim of the compearer, and an appeal by the poinding
creditor to the Circuit was found incompetent. Lord
Moncreiff held that the claim of the third party for the
goods must be viewed as the summons, and as its con-
clusions was not pecuniary, but for delivery of the ipsa
corpora of the sheep, he was of opinion that the appeal
was incompetent, and would have been so though only
one sheep had been poinded. The interlocutor dismiss-
ing the case as incompetent in Glass' case, was pro-
nounced after full argument, and after his Lordship had
made avizandum to consider the question.
The Lord Justice-Clerk:, without calling on the
counsel for the appellant, repelled the objection. He
held that the Jurisdiction Act, by its terms, imposed no
AND CIRCUIT COURTS OP JUSTICIARY. 495
restriction on the right of appeal, in respect of the nature No. 82.
of the action, provided only that the real value of the watson!'
subject-matter in dispute did not exceed £25. Nor did perth.
the act require that the conclusions of the summons in '{gsu
the case appealed, should be pecuniary, or should bear Appeal.
on its face, or contain materials for shewing, that the
value of the subject was under £25. An appeal lay in
every case, except where the subject-matter in dispute
exceeded £25 in value ; and in every case where a party
objected to the competency, the onus of proving that the
value exceeded that sum, lay with the objector. In re-
gard to the case of Glass, and similar cases, his Lordship
observed, that he did not think they had been rightly
decided, and although a decision by the Justiciary on a
certified case would be binding on judges on Circuit, yet
he did not think that the opinion of a single judge on
Circuit would necessarily be binding on his successors.
In the present case, he had no difficulty in repelling the
objection.
The note by the Lord Justice-Clerk, annexed to his
interlocutor, so far as the objection was concerned, is as
follows : — ' It appears to the Lord Justice-Clerk that
' the objection to the competency proceeds on a mistake
' as to the question to be decided. Appeal is excluded
' if the value is above a certain sum. That cannot be
' shewn in the present or similar cases.'
Appeal sustained.
W. A. Taylor, Cnpar, — R. Wilson, Cupar, — Agents.
2 K
496 CASES BEFORE THE HIGH COURT
HIGH COURT.
Present,
The Lord Jdstice-Clebk,
Lords Colonsay and Cowan.
Her Majesty's Advocate — Sol.-Gen. Deas — G. Young A.D.
AGAINST
John Mooney — Carnegy Ritchie.
Theft. — A pannel, from ■whom certain articles had been purchased,
receiyed from the purchaser a one-pound note, in order that he
might retain the price, and return_the balance. He appropriated
the whole sum. — Held, that this was theft of the one-pound note,
and not merely of the balance.
No. 83. John Mooney was charged with the crime of Theft,
MooMy. especially when committed by a person who has been
High Court, previously convicted of theft :
Nov. 17.
}861.
In so fab as, on the 4th day of October 1851, or on one or other of
the days of that month, or of September immediately preceding, or of
November immediately following, in or near the shop or other pre-
mises in or near Leith "Wynd, Edinburgh, then and now or lately
occupied by you the said John Mooney, you the said John Mooney
did, wickedly and feloniously, steal and theftnously away take, a
bank or banker's note for one pound sterling, the property or in the
lawful possession of George Young, labourer, then and now or lately
residing with John Leyden, labourer, in or near Leith Wynd, Edin-
burgh, which was then and there handed or delivered to you, for the
purpose of procuring change therefor, and for the taking payment
therefrom of twopence halfpenny, or thereby, as the price of a small
quantity of potatoes, fish, and whisky, or other articles, which had
been furnished by you, or in your said shop or premises, to the said
George Young, and of delivering to him the balance, amounting to
nineteen shillings and ninepence halfpenny sterling, or thereby : Ob
OTHERWISE, time and place above libelled, or time above libelled, and
at some other place in or near Edinburgh to the prosecutor unknown,
you the said John Mooney did, wickedly and feloniously, steal and
Theft.
AND CIRCUIT COURTS OP JUSTICIARY. 497
theftuously away take, the foresaid balance of nineteen shillings and No. 03.
ninepence halfpenny, or thereby, the property or in the lawful pos- y.f°^"'
session of the said George Young ; and you the said John Mooney are
habit and repute a thief, and have been previously convicted of theft. ^J^ ""' "
The indictment was found relevant without objection.
The pannel pleaded Not Guilty.
Evidence having been led in support of the charge,
The LoED Justice-Cleek, in charging the Jury, ob-
served : ' You may lay aside altogether the second
' alternative of the indictment. If there was theft at all,
' it was theft of the one-pound note.'
The Jury unanimously found the pannel Guilty of the
theft of the one-pound note, as libelled.
In respect of which verdict, the prisoner was sen-
tenced to be Transported beyond seas for the period of
seven years.
1051.
Theft.
Her Majesty's Advocate — Sol. Gen. I)eas — G. Young A.D.
AGAINST
RoBiNA Burnet — Broun.
Elizabeth Fisher — Garnegy Eitc/iie.
AND
William Masterton.
Theft — Reset — Evidence — Hearsay. — Two pannels were accused
of stealing two £50 Bank of England notes, and a third was charged
in the same indictment with resetting them. The alleged resetter
was fugitated for non-appearance. Hfeld, that statements made by
him, and a letter written by him on his apprehension in London, in
the act of passing one of the stolen notes, were admissible in evi-
dence, to the effect of identifying him as a party whose house the No. 84.
two other panuels were proved to have frequented. Burnet'and
Others.
RoBiNA Burnet and Elizabeth Fishee were charged uigii court.
Nov 17
with the Theft of Two Fifty-Pound Bank of England issi.
Notes.; and William Masteeton, designed in the in- Tiicft. ^
Theft.
498 CASES BEFORE THE HIGH COURT
No. 84. dictment as ' grocer and spirit-dealer, in or near Saint
BuraetTad ' James Place, in or near Edinburgh,' was charged with
^"'^''^- Resetting the Notes,
"ifov^""!'' The theft was alleged to have been committed on the
i!!!lil Calton Hill, on the 17th or 18th of June 1851.
The pannelMastertonwas outlawed for non-appearance.
The pannels Burnet and Fisher pleaded Not Guilty.
In the course of the trial, it appeared, that one of the
notes, of which the number was known, and payment of
which had been stopped at the Bank of England, was
presented by Masterton on the 5th July.
James Cambus, Cashier of the Bank of England — Deponed, A
note was presented at the Bank, on the 5th. July. We had informa-
tion of it as stolen, and stopped it. I put the man into the secretary's
office. He gave his name "William Masterton.
Geobge Russell, an Officer of the London Detective Police. — I was
in the Bank of England on the 5th July. A man presented this note.
I took him into custody ; he was afterwa,rds liberated on bail. I was
told in his presence that he wrote a letter.
Broun, for the pannel Burnet, objected, that neither
the letter nor the statements of Masterton formed com-
petent evidence against Burnet. Even had Masterton
been at the bar, his declaration could not have been re-
ceived against Burnet ; still less could any letter alleged
to have been written by him. Besides, the statements
of Masterton were liable to the objection of being mere
hearsay evidence.
The Solicitor-General, for the prosecution, explained,
that his only object in producing the letter, and putting
in evidence the statements of Masterton, was to identify
Masterton as the party whose shop the pannels Burnet
and Fisher frequented. He was quite entitled to prove
whatever tended to trace the stolen note from the pos-
session of the pannel to that of Masterton, in whose hands
it was identified.
The Lord Justice-Clerk. — ^The object of the prose-
cutor is not to make the letter and these statements di-
rect evidence.
1851,
Theft.
AND CIRCUIT COURTS OF JUSTICIARY. 499
Broun. — If they cannot be made evidence directly No. 84.
against Burnet, can they be made evidence indirectly ? BurnetTnd
Lord Colonsay. — This is just evidence explaining __£!!^!!!l-
how the person apprehended by Russell is identified with jfov. uf *
William Masterton, keeping a grocery and spirit shop in .
St James Place, Edinburgh.
The Court therefore repelled the objection, but held
that the prosecutor ought first to establish some con-
nexion or communication between Masterton and Burnet.
The Counsel for the Crown then called —
Charles Gbeen, Sergeant of Police, who deponed, — On the night
of the 1 7th June, I saw the prisoners together at the end of Register
Street, about twenty minutes to ten. They are companions. I know
the shop of "William Masterton, in James' Place. I have seen the
pannels in that shop ; Fisher oftener than Burnet. I have seen them
both separately and together. It was some time before June that I
saw them ; two weeks or so before.
Geobge Russell, recalled. — Masterton admitted that he wrote that
document — the letter in question. He said he was a shopkeeper in
Edinburgh, in St James' Place ; a grocery and spirit store ; and that
he had a brother in Edinburgh.
John Masterton then identified the letter as being in his brother's
handwriting.
The Solicitor-General addressed the Jury on the
part of the Crown, and was followed by the Counsel for
the pannels Burnet and Fisher respectively.
The Lord Justice-Clerk charged the Jury, intimating
an opinion that the case was not proved as against Fisher.
The Jury, by a majority of one, found the charge Not
Proven.
In respect of which verdict, the pannels were assoilzied
simpliciter, and dismissed from the bar.
500 CASES BEFORE THE HIGH COURT
Her Majesty's kDvocKim-T-Sol.-Gen. Dea» — G. Young A.D.
AGAINST
William Rait — Adam.
Indictment — Relevancy — Aggravations. — Mode of libelling ag-
gravations, which was found relevant, where the major proposition
of the indictment included several charges, to all of which the ag-
gravations did not apply.
No. 85. William Rait was indicted and accused :
William
Rait.
„■ p — T That albeit, by the laws of this and of every other well-governed
Nov. 17. realm, Falsehood, Fraud, and Wilful Imposition, especially when com-
^^^^- mitted by a person who has been previously convicted of Falsehood,
Falsehood, Fraud, and Wilful Imposition ; As also Forgery, especially when com-
Wilful'ln' ™it*'^'^ ^7 ^ person who has been previously convicted of Forgery; As
position ; as also, the wickedly and feloniously using and uttering, as genuine, a
also Theft, popged order or writing, knowing the same to be forged, especially
when committed by a person who haa been previously convicted of
using and uttering, as genuine, forged orders or writings, knowing the
same to be forged ; As also, Theft, are crimes of an heinous nature, and
severely punishable : Yet true it is and of verity, that you the
said William Rait are guilty of the said crimes, aggravated as afore-
said, or of one or more of them, actor, or art and part.
Adam, for the paunel, objected — Certain crimes were
set forth in the major proposition, as being aggravated,
and also theft, without aggravations ; whereas, the minor
charged the panel with being 'guilty of the said crimes,
' aggravated as aforesaid,' and was thus applicable only
to the crimes set forth as being aggravated, and not to
the theft, which therefore was not relevantly libelled.
Young. — Such is the invariable form in which in-
dictments are drawn in similar cases. M'Callum, High
Court, March 7, 1^36 ; Swinton, vol. i. p. 64.
The Court repelled the objection, but intimated an
opinion, that the indictment might have borne that ' you
' the said William Rait are guilty of the said crimes, or
' of one or more of them, aggravated as aforesaid, in so
' fer as, &c.'
AND CIRCUIT COURTS OP JUSTICIARY. 501
Present,
The Lord Jitstice-Clerk, Dec. 8.
1851.
Lords Wood, Ivoey, Colonsay, and Cowan.
Her Majesty's Advocate — Sol.-Gen. Deas — Young A . D.
Joseph Kilgour — Craufurd.
Relevancy — Theft— Fraud — Breach op Trust and Embezzle-
ment— Husband and Wipe. — Held, 1 . That it was criminal in a
Husband, who, by antenuptial contract, had excluded his right of
administration, to appropriate surreptitiously a sum of money, a por-
tion of an heritable bond, forming part of the Wife's tocher.
2. That the Indictment was relevantly laid as a charge of Theft.
Joseph Kilgour was charged with Theft, as also no. 86.
Fraud, as also Breach of Trust and Embezzlement, or KUgour.
one or more of the said crimes :
High Court.
Dec. 8.
In so FAR AS, an antenuptial contract of marriage, dated on or about
the 21st day of March 1849, having been entered into and executed Theft and
between you the said Joseph Kilgour and Margaret M' Arthur or Tmst.
M'Arter or Jack, now Margaret Kilgour, your wife, whereby the said
Margaret M'Arthur or M'Arter or Jack, disponed and conveyed to
herself and the child or children of the marriage between you and her,
if there should be any, and failing such child or children, to you the
said Joseph Kilgour in the event of your surviving her, the whole he-
ritable and moveable means and estate of every description then per-
taining, or which should pertain thereafter to her, and which means
and estate are described or mentioned in the said contract as then con-
sisting in part of certain dwelling-houses situated in Broad Street,
Alloa, the sum of £200, contained in a bond and disposition in secu-
rity, by John Golder, watchmaker in Alloa, over the dwelling-house
and grounds belonging to.him, situated at the north-west end of Alloa,
two shares in the Steam-Boat Company, a share in the Alloa
Gas- Works, the sum of £80, contained in a bond by the Alloa Town
Trustees, and a sum of money lying in the Western Bank upon a de-
posit receipt, but which disposition and conveyance contained in the
said contract, is thereby declared to be subject to the conditions, pro-
visions, and stipulations, expressed in the said contract in the following
or some similar terms, viz. : ' It is hereby agreed upon by both parties.
502 CASES BEFORE THE HIGH COURT
No. 86. ' that the said heritable subjects and heritable debt, and the shares in
Kilmur ' ®^'^ Steam-Boat Company and Gas Company, and whole other means
' and estate presently pertaining to or which shall hereafter be acquired
Dec. 8. ' liy lier, shall, notwithstanding this conveyance, still remain the pro-
185). i perty of the said Margaret M'Arthur or Jack, and be at her disposal.
Theft and ' and she hereby reserves to herself full power and liberty by herself
^TriJt"^ ' ^^°°®' without consent of the said Joseph Kilgour, to assign and dis-
' pone, by way of a mortis causa deed, testament, or otherwise, her
' said heritable and moveable means and estate, the shares in said com-
' panies and principal sums belonging to her generally and particularly
' before mentioned, and such means and estate as she may hereafter
' acquire ; and the said Joseph Kilgour renounces, by these presents,
' all right, title, and interest, he has or might have to the rents or pro-
' fits of the said heritable property, and of the said sum of £200, and
' the said shares, and sums of money, principal and interest, either in
' virtue of his jus mariti courtesy, or otherwise, it being farther de-
' clared, that the same shall neither be liable to his deeds nor subjected
' to the legal diligence of his creditors for payment of the debts already
' contracted, or which shall be contracted, by him, declaring that the
' said rents, profits, and interest of the said principal sums of money,
' shall be payable to the said Margaret M'Arthur or Jack, exclusive
' of the jus mariti of her said intended husband, without his consent,
' and upon her own receipt and discharge therefor ; and, in the event
' of it being necessary to uplift the said sum of £200, and the said
' shares or sums of money above mentioned, or part thereof, the said
' Margaret M'Arthur or Jack hereby reserves full power to uplift the
' same, and to grant receipts and discharges therefor in her own name,
' which receipts shall be sufficient for the sums, principal and interest,
' or any part thereof j and she shall be entitled, without the consent of
' her said husband, to lend out and re-employ the same, and to take
' the bonds or other securities to be granted therefor, payable to her-
' self : But it is hereby declared, on the other hand, that the whole of
' the property which shall pertain to the said Margaret M'Arthur or
' Jack at her decease, in the event of her predeceasing her said in-
' tended husband, and which shall remain undisposed of by her, and
' which shall not be conveyed by mortis causa deed or testament to
' any other party, shall belong, in conformity with the conveyance
' hereof already made, to the said Joseph Kilgour, her intended hus-
' band :' And it having become necessary to uplift the foresaid sum of
£200, and the said John Golder, watchmaker, the debtor in the said
bond and disposition in security, now or lately residing at Douglas, in
the parish of Douglas, and county of Lanark, or Janet Golder, his
daughter, and now or lately residing with him, or some other person
acting for him or on his behalf, having, on the Slst day of May 185J,
or on one or other of the days of that month, or of April immediately
preceding, or of June immediately following, within or near the house
AND CIRCUIT COURTS OF JUSTICIARY. 503
or office in or near Mar Street of Alloa, in the county of Clackmannan, No. 86.
then and now or lately occupied by John Watson, writer there, paid ^?^®P''
to the said Margaret Kilgour, your wife, or to David Dunsyre Syme, •
then and now or lately clerk to William Spence, writer in Alloa, as ':Dec.'8!'^
acting for her, and on her behalf, the sum of £200 sterling, consisting 1851-
of Five Bank or Banker's Notes for Twenty Pounds sterling each, and Theft and
Twenty Bank or Banker's Notes for Five Pounds sterling each, or con- Breach of
sisting of bank or banker's notes of some other description to the pro-
secutor unknown, to the amount of £200 sterling, being the sum con-
tained in said bond and disposition in security ; and the said bank or
banker's notes having immediately thereafter, and within or near the
said house or ofiSce, been delivered and entrusted to you the said Joseph
Kilgour, by the said Margaret Kilgour, your wife, or by the said David
Dunsyre Syme, in order that you might carry the same from the said
house or office straightway to the office or business premises of the
Western Bank of Scotland, in Alloa aforesaid, there to be deposited in
name of your said wife, and for her exclusive behoof, or you having,
then and there, wickedly and feloniously, taken possession of the said
bank or banker's notes, upon the fraudulent pretence of counting and
thereafter carrying the same for your said wife, straightway to the said
office or business premises of the Western Bank of Scotland, there to
be deposited as aforesaid, your real object and intention being, fraudu-
lently and feloniously, to keep and appropriate the same to your own
uses and purposes, you the said Joseph Kilgour did, time above libelled,
in or near the said house or office occupied by the said John Watson,
or at or near the said .office or business premises of the Western Bank
of Scotland, in Alloa aforesaid, or at some part of Alloa between said
places, wickedly and feloniously, steal and theftuously away take, the
Bank or Banker's Notes above libelled, to the amount of £200 ster-
ling, the exclusive property, or in the lawful possession, of the said
Margaret Kilgour, your wife ; or otherwise, time and place aforesaid,
you the said Joseph Kilgour did, fraudulently and feloniously, and in
breach of the trust reposed in you, embezzle and appropriate to your
own uses and purposes the Bank or Banker's Notes above libelled, to
the amount of £200 sterling, the exclusive property, or in the lawful
possession, of the said Margaret Kilgour, your wife.
Craufued objected to the relevancy of the libel, as
charging the husband with having appropriated to him-
self property forming part of the goods in communion,
and thereby having committed theft. The wife was in
law eadem persona with the husband ; and nothing was
more certain than that a man could not steal from him-
self. He did not contend that a husband might not,
under such circumstances as the indictment alleged, com-
Breach of
Trust.
504 CASES BEFORE THE HIGH COURT
No. 86. mit an innominate offence, or perhaps a charge of fraud
Kiigi'ur. might competently be preferred ; but there was neither
High Court, precedent nor authority for holding such species fadi to
^85,;' amount to theft. It seemed to be settled law, that a
Theft and wifc could uot stcol from her husband ; since, in the two
cases which were alone known, the charge had been
withdrawn, with concurrence of the Court. It was said
that, in this case, the jus mariti was excluded ; but that
did not alter the legal principle, if he was right in assuming ^
that a wife could not steal from her husband. Marriage,
in her case, excluded administration, except under the
implied prepositura, limited and restrained by law. The
husband, by his contract, merely renounced what he would
otherwise have enjoyed es lege; and it was all the stronger
in his favour, that this was a contract of renunciation on
his part, whilst, in the case of the wife, she could never
have the right propria jure. (Cases oi Becket, April 26,
1831 ; Bell's Notes to Hume, p. 23 ; M'Leod, October
14, 1838, Swinton, vol. ii. p. 190 ; Roscoe's Criminal
Digest, 3d edit. pp. 594-5 ; Russell on Crimes, vol, i.
p. 22.) It was a separate question, as to whether
the minor was relevantly framed to infer a charge of
fraud. There was, however, an objection arising on the
score of insufficiency, which applied to this charge, viz.
that the minor, being distinct as to the mode in which
the alleged theft was said to have been committed,
merely used the words ' or otherwise' committed the
said offence, without distinct reference to the modus
operandi, as laid in the charge of theft, or any other
specific description of the offence charged. Had it said
in ' manner aforesaid,' or used any equivalent words,
that might have done, but as a minor to the charge of
fraud, as charged in the major, the present indictment
was insufficient.
LoED Wood. — I am of opinion this indictment is well
drawn. The bond was, by valid and onerous contra-ct,
the property of the wife, notwithstanding the marriage.
The money was uplifted, and the charge made is, that
AND CIRCUIT COURTS OP JUSTICIARY. 505
the pannel feloniously stole it. That such an act consti- No. as.
tuted theft, and that it is properly and sufficiently charged Kiigour.
in this libel, I am clear. The argument for the prisoner High Court.
was twofold : 1st, From the analogy drawn from the mi.'
case of a wife, who, it is said, cannot steal from her hus- Theft and
band. This argument, however, proceeds upon a mis- TTust."*
take. No decision to the effect stated has ever been
pronounced. The question, no doubt, has been raised,
and abandoned ; but I by no means concur in holding,
that, in no possible case, can a wife steal from her hus-
band. Quite the reverse. Notwithstanding the commu-
nio bonorum, the property inter vivos is in the husband ;
and I can conceive various cases, wherein appropriation
by the wife, for her exclusive use, would be theft. Here,
however, the rights and obligations of the parties are de-
fined by express contract ; the husband expressly excluded
his jus mariti. It is said he could not do so, so effectually
as ^;o make his own appropriation theft, the property still
being, in the eye of law, goods in communion. But, as
I have before said, I think this insufficient. If the wife
can steal, notwithstanding her implied mandate, and there
is no decision to the contrary, most clearly the husband
can, when he has renounced every implied right, by an
onerous obligation. But then, 2dly, It is said that the
, husband and wife must be regarded as eadem persona.
But that argument is plainly fallacious. They are so in
some things, not so in others. It can never be pretended
that a husband cannot be guilty of assault, by striking his
wife. This at once, therefore, disposes of that argument
in criminal cases. But further : In this case the object
of the contract was to secure a diversity of interest, not-
withstanding the marriage ; and this, the law says, may
be competently effected, in the manner here adopted,
deliberately and hnowingly, on the pannel's part, by ante-
nuptial contract. That being so, I cannot see how we
can refuse to sustain this as a relevant charge of theft.
As to the second and minor objection, that the minor is
incompetently libelled as a case of fraud, I cannot accede
506 CASES BEFORE THE HIGH COURT
No. 86. thereto. It has been matter of repeated decision, that,
Kiigour. in eases where the major is alternative, the minor need
High Court, not havc separate statements to support each proposi-
1851.' tion.
Theft and LoRi) IvoRY. — I am precisely of the same opinion.
Trult." The instant that it is admitted, that the property alleged
to have been appropriated by the pannel was the pro-
perty of the wife, the case decides itself; for, if the law
empowers a wife to secure to herself a separate right of
property, independently of her husband, it follows, as a
necessary consequence, that such right must be pro-
tected. It is said, however, that husband or wife, in
contemplation of law, constitute one person ; and that,
as a man cannot steal from himself, so neither can he
steal from his wife. This, however, is at once met by
the provisions of the contract, in so far as the charge
against the pannel is concerned ; but the express object
of that was to exclude the operation of common law in
favour of the husband. Whether, in the absence of such
contract, either of the goods falling properly within the
ordinary operation of law, as goods in communion be-
tween the spouses, appropriation by one or either would
be theft as against the other, I do not wish to determine ;
and on that point I reserve my opinion. But nothing
has ever been laid down decisive on the doctrine pro-
pounded by Mr Craufurd, that, in no case, can the wife
steal from the husband. The true question is. In whom
did the right of property of the subject-matter of this
charge exist ? Plainly in the wife ; and it would have
been theft as against her, and not as against the husband,
that the charge would have been preferred, had the crime
been committed by a third party. If so, is it less a crime
that the husband is the criminal ? and can his relation to
the party injured alter the character of the offence ? I
think not ; and I therefore agree with Lord Wood, in
holding this indictment to contain a good charge, and
that it is relevantly framed.
Lord Colonsay. — The crime charged in this indict-
I
AND CIRCUIT COURTS OF JUSTICIARY. 507
ment is that of theft, and, I think, competently and rele- No. 86.
• •in Joseph
vantly preierred. The property m question was legally Kiigour.
vested in the wife. The abstraction of property, in the High court,
Dec. 8.
manner libelled, is plainly theftuous ; and I cannot see, i8si
assuming the party to be guilty of any criminality, that "rheft and
the party is less a thief because he is a husband, when it Traat."
plainly appears that he had no right of property in the
goods. I am very averse to make new law ; but, on the
other hand, I am equally averse to restrict the vigour of
the common law from reaching new modes of committing
old offences. As to the English cases which have been
quoted, and the remark made thereon, that we should be
slow to run counter thereto, I think such remark should
be confined to apposite cases, such as the construction of
statute common to both ends of the island. But, with
regard to the exposition of common law, no such rule
holds ; and I care not, in the extrication of any case,
arising under our own law, to inquire what is the com-
mon law of England relative thereto. If we are satisfied
our own law is right, we must adhere to it ; and if there
be any inconvenience arising from the difference, it is for
them to change their law, and not us ours.
Lord Cowan. — I am entirely of the same opinion ;
but, after the luminous exposition of the law which has
been given by your Lordships, it is unnecessary for me
to add anything.
The Lord Justice-Clerk. — I entirely concur. I al-
together lay aside the cases which have occurred, of a
wife stealing from her husband, inasmuch as the specific
facts of each of those cases may raise a very dif-
ferent one from that now before us. In the case of
Becket, the indictment was disproved by the evidence of
the wife ; that of M'Leod was, I think, a clear case of
theft. But every case must be judged on its own merits.
Mr Craufurd asked, if a wife pawned her husband's
clothes for drink, if it would be theft ? I do not think
it necessary to determine this. The ordinary case of
pawning by a third party, to whom goods have been
508 CASES BEFORE THE HIGH COURT
No. !i6. entrusted for a specific purpose, is different from that of
Kiigour. a wife who is entrusted with the care of them, and whose
High Court, exigencies may depend as much on her husband's conduct
^85l" as her own ; not that I should hesitate, because the goods
Theft and might be said to be within the communio bonorum ; on
^Trutr^ the contrary, I think that principle comes iMo effect on
the death of one of the spouses, and I remember Lord
Moncreiff expressed an opinion to the same effect. This,
however, is unnecessary to consider in the present case.
Confessedly these goods were separate property in the
wife, by means of an onerous deed, viz. an ante-nuptial
contract of marriage, to which the law attaches its high-
est sanction and protection. Now, could the husband
have stolen the deed itself? If so, why could he not
steal the property thereby conveyed ? It is admitted,
that appropriation of such property might form the
ground of a charge of fraud ; but if so, why not of theft ?
The nomen Juris depends altogether, and exclusively, on
the species facti. As to the second point, I have always
regretted that the Court should have allowed the prac-
tice to creep in, of having one minor only, where two
charges are preferred in the major. But that practice
has now become so inveterate, that we cannot attempt
to alter it.
The Court therefore repelled the objection, and found
the indictment relevant.
Jan. 19. The diet having been again called this day, the pannel
pleaded Not Guilty.
The Jury found the pannel Guilty of Theft, as libelled.
Jan. -24. Sentence was deferred until this day, when the Court
sentenced the pannel to be imprisoned for the period of
fifteen months.
AND CIRCUIT COURTS OF JUSTICIARY. 509
Her Majesty's Advocate — Sol.-Gen. Deas — G. Young A.D.
Clark A.D.
John Mooney — Mackonochie.
Statute 2d Will. IV. o. 34 — Base Coin — Utteeino — Relevancy.
— A Counterfeit Coin was substituted for a genuine shilling, received
in change, and another genuine shilling demanded in exchange for
it, — Held, that this was suiBcient uttering under the statute 2d Will.
IV. c. 34.
Where there were two charges of contravention of this statute, the
second of which was charged to have been committed ' time above
' libelled,' observed, that if the oflFence of repeated uttering within the
space of ten days, was intended to be charged, the time of the second
uttering should have been more distinctly stated — and that charge
accordingly withdrawn.
At the Glasgow Autumn Circuit, 1851, John Mooney No. 87.
was indicted and accused — Mooney.
High Court.
That albeit, by an act passed in the second year of the reign of Dec. 8
his late Majesty King William the Fourth, Chapter thirty-four, in- ^^^*'
tituled ' An act for consolidating and amending the laws against offences Base Coin.
relating to the Coin,' it is enacted, by section seventh of the said act,
' That if any person shall tender, utter, or put off, any false or coun-
' terfeit Coin, resembling, or apparently intended to resemble or pass for
' any of the King's current gold or silver Coin, knowing the same to be
' false and counterfeit, every such offender shall, in England and Ireland,
' be guilty of a misdemeanour, and in Scotland of a crime and offence,
' and being convicted thereof, shall be imprisoned for any term not ex-
' ceeding one year ; and if any person shall tender, utter, or put off, any
' false or counterfeit Coin, resembling or apparently intended to resemble
' or pass for, any of the King's current gold or silver Coin, knowing the
' same to be false and counterfeit, and such person shall, at the time of
' such tendering, uttering, or putting off, have in his possession, besides
' the false or counterfeit Coin, so tendered, uttered, or put off, one or
' more piece or pieces of false or counterfeit Coin, resembling or ap -
' parently intended to resemble or pass for, any of the King's current
' gold or silver Coin, or shall, either on the day of such tendering, ut-
' tering, or putting off, or within the space of ten days then next en-
' suing, tender, utter, or put off, any more or other false or counterfeit
' Coin, resembling or apparently intended to resemble, or pass for, any
' of the King's current gold or silver Coin, every such offender shall^
510 CASES BEFORE THE HIGH COURT
No. 87. ' in Eugland and Ireland, be guilty of a misdemeanour, and in Scot-
John I land of a crime and offence, and, being convicted thereof, ^hall be
' ' ' imprisoned for any term not exceeding one year :' — And albeit, by
Dec. 8. ' the laws of this and every other well governed realm, Falsehood, Fraud,
1S51- and Wilful Imposition ; as also Falsehood and Fraud, are crimes of
Base Coin, an heinous nature, and severely punishable : Yet true it is and of
VERITY, That you the said John Mooney are guilty of the crimes and
offences set forth in the said section of the statute above recited, or of
one or more of them, actor, or art and part, and of the crimes at com-
mon law above libelled, or of one or other of them, actor, or art and
part : In so par as, (1.), on the 3d day of August 1851, or on one or
other of the days of that month, or of July immediately preceding,
or of September immediately following, in or near the shop or premises,
in or near Main Street of Eutherglen, in the parish of Eutberglen, and
County of Lanark, then and now or lately occupied by John Dunn,
then and now or lately a spirit dealer, residing there, you the said
John Mooney did, wickedly and feleniously, tender, utter, or put off,
a false or counterfeit Coin, resembling, or apparently intended to re-
semble or pass for, a shilling piece of the Queen's current silver Coin,
you knowing the same to be false and counterfeit ; and this you did,
by then and there delivering or tendering the same to Margaret Turn-
bull or Dunn, wife of, and then and now or lately residing with, the
said John Dunn, and then and there, wickedly and feloniously, falsely,
fraudulently, and wilfully, representing and pretending to the said
Margaret TurnbuU or Dunn that she had, then and there, delivered to
you the said false and counterfeit Coin, instead of a genuine shilling
piece, as part of the change which you were entitled to receive from
her out of a half-crown piece or other coin, which you then and there
delivered to her in payment of a gill or other small quantity of whisky,
which had been then and there purchased by you, she having paid or
given to you your change aforesaid, amounting to two shillings and
threepence sterling or thereby, in good or genuine money, as you well
knew, and then and there demanding, upon the false and fraudulent
pretence aforesaid, a genuine shilling piece, or some other coin or
coins equivalent in value thereto, from the said Margaret Turnbull or
Dunn in exchange for the said false or counterfeit coin, by all which,
or part thereof, the said Margaret Turnbull or Dunn was deceived and
imposed upon, and induced, then and there, to deliver to you in ex-
change for the said false and counterfeit coin, a genuine shilling piece,
the property, or in the lawful possession of the said Margaret Turnbull
or Dunn, or of the said John Dunn, which genuine shilling piece you
did, then and there, fraudulently receive and appropriate to your own
use and purposes : Likbas, (2.) time above libelled, in or near the
shop or premises, in or near Main Street of Eutherglen aforesaid, then
and now or lately occupied by Elizabeth Jobbs or M'Gurk, a widow,
then and now or lately a spirit dealer there, you the said John Mooney
AND CIBCUIT COURTS OP JUSTICIARY. 511
did, wickedly and feloniously, tender, utter, or put off, a false or coun- No. 87.
terfeit Coin, resembling, or apparently intended to resemble or pass -J
for a shilling piece of the Queen's current silver Coin, you knowing the — :
same to be false and counterfeit, by then and there delivering, or ten- pg^ g
dering the same to the said Elizabeth Jobbs or M'Gurk, and then and 1861.
there wickedly and feloniously, falsely, fraudulently, and wilfully, re- Base Coin,
presenting and pretending to the said Elizabeth Jobbs or M'Gurk, that
she had then and there delivered to you the said false or counterfeit
Coin, instead of a genuine shilling piece, as part of the change which
you were entitled to receive from her out of a half-crown piece or other
Coin, which you had, then and there, delivered to her in payment of
a gill or other small quantity of whisky, which had been then and
there purchased by you, she having paid or given to you your change
aforesaid, amounting to two shillings and threepence sterling or thereby,
in good or genuine money, as you well knew, and then and there de-
manding, upon the false and fraudulent representations and pretences
aforesaid, from the said Elizabeth Jobbs or M'Gurk, a shilling piece or
some other Coin or Coins equal in value thereto, in exchange for the
said false or counterfeit Coin ; and this yon did with intent to cheat
and defraud the said Elizabeth Jobbs or M'Gurk, and in order to in-
duce her to give you a shilling piece, or other Coin or Coins equal in
value thereto, in exchange for the said false and counterfeit Coin, and
defraud her thereby.
Mackonochie, for the pannel, objected that the crime
set forth in the minor proposition, did not amount to the
charge of uttering in the major, in so far as the coin
was not said to have been uttered as genuine ; but to
have been issued with an acknowledgment of its base
, and counterfeit character.
Lords Colonsay and Cowan certified the case to the
High Court of Justiciary.
The diet having been called this day, —
Mackonochie, in support of the objection, referred to
the analogous case of forgery, where the statutes expressly
provide, that in order to constitute the crime, the forged
document must be passed as genuine, and contended, that
the same principle must hold in such cases as the present.
To the rule stated as to forgery, there was only one ex-
ception, viz. — where coin or notes are transferred as
false from one accomplice to another ; but this exception
had no analogy to the present case, as there was here no
2l
512 CASES BEFORE THE HIGH COURT
No. 87. deliberate intention to defraud the revenue. The party
Mooney. to whom the coin was issued was warned of its counter-
High Court, feit character, and bound therefore to destroy it.
1851." The Solicitoe-General and Clark, for the prosecu-
Base Coin, tion, — It is not necessary that the base coin should be
uttered as genuine. It is sufficient to constitute the
crime charged if the resemblance of the counterfeit to
the genuine coin is made use of to defraud the lieges. —
John Alchorne, March 12. 1830, Bell's Notes, p. 58 ;
William Cooke, January 7. 1833, ibid.
Lord Cowan. — I scarcely think the case of Alchorne
rules the present. It does not appear that any objection
was stated to the indictment in that case — and that be-
ing so, I do not see that the Court is thereby foreclosed
from considering the objection when it is stated, more
especially under an important statute like this. At pre-
sent, I rather think, looking to the words of the act, that
it is of the essence of the crime that the false coin be
passed off as genuine.
The Lord JustiCe-Clerk. — I do not see any diflficulty.
In '(he first place, the words of the act contain no declara-
tion that the base money shall be passed off as genuine ;
and, secondly, the object in every one of these cases is to
get the value of the real coin in return for the counter-
feit ; and in whatever form, or by whatever means, you
do pass off the counterfeit, if you get the value, you com-
mit the crime. The word resembling does not apply to
the object with which the coin is passed, but is merely
descriptive. Here the object of putting off the false
coin was to get the value of the real coin, by pretending
that the former was one which the pannel had got from
the other party. As to the objection, that this was not
putting off, I shall only say, that I have tried many cases
of a similar nature without objection ; and if in any other
such an objection had been stated, I should have held, as
I do now, that it must be repelled. It is important to
observe, that the case of Cooke was decided in 1833, one-
year after the passing of this act, when that statute was
AND CIRCUIT COURTS OF JUSTICIARY, 513
most carefully considered, with a view to the right con- '^ohrf'
struction of it. As to the other statutes, I only say that M°»"ey-
we cannot import the construction of other statutes by HighComt.
implication into this act, and hold that here the words i8si.
■putting off, mean putting off as genuine, because that is ^^^ <^°'°-
specially mentioned in the forgery acts, and is necessary
under these acts to the commission of that crime. We
cannot apply these statutes to the present case.
Lord Wood. — I am of the same opinion. I do not
hold that, because, in 1833, an indictment, containing a
charge similar to the present, but which also contained
another charge, went without objection to the jury, there-
fore this is a decided point ; but I do think it of import-
ance, looking to the date of that case, that such an in-
dictment did pass without objection ; and the matter is
rendered stronger by what your Lordship says, that you
have frequently tried such cases without objection. Then,
it is very important, that the statute does not say the
base money is to be passed as genuine ; because if these
words are not to be found there, it is a reasonable infer-
ence, that the words as genuine are not necessary to make
an indictment relevant. But, then, the question is, does
the statement in the minor satisfy the provision of the
statute? Now, what does the statute say — 'false or
' counterfeit coin, resembling, or apparently intended to
' resemble or pass for, current coin,' knowing the same
to be false or counterfeit. Now, all these words are
satisfied by the minor of the present indictment, for the
pannel got the value of a good shilling by the resemblance
of the counterfeit coin to a shilling, and so he passed off
his bad one. He did therefore tender, offer, and put off
a counterfeit coin,; and if the insertion of the words
' as genuine' is unnecessary, then he committed the sta-
tutory crime. As to the expression ' resembling,' I agree
with your Lordship that it is intended merely to be de-
scriptive.
LoED IvoEY. — I should like to consider the case.
The case was continued till this day. ^^c. 9.
514 CASES BEFORE THE HIGH COURT
'^John ■ ^^^^ Ivory. — When we look at the words of the act,
Mooney I am quite satisfied that the indictment is good. The
^^Dec^T"' ^^^ ^^ ^ consolidating act, and the decisions under it apply
^851.' to the whole kingdom. In England, it has been decided
Base Coin — Frank, 1 Russell on Crimes, 78, 3d ed. — that the word
' littering' may bear the signification given to it here, and
that seems to me conclusive.
Lord Colonsay. — I am of the same opinion. When
this case was before us at Glasgow, we were not aware
that any cases had occurred of a similar nature, and there-
fore thought it right to reserve it for the consideration
of your Lordships ; but it appeared to me then, as it still
does, that the decision must depend on the meaning at-
tached to the words of the statute. The question is,
whether the expression * uttering,' without any adjuncts,
is to be held to cover more than the passing off of base
money as genuine. In its own meaning, I think the ex-
pression is wider than that. The statute now before us
does not use the words ' as genuine,' and the indictment
sets forth circumstances which, I think, come within the
expression ' uttering.' No doubt, everything which may,
in one sense, be called uttering, is not uttering under the
statute. If I give over a base coin to the Master of the .
Mint, that is not uttering in the sens'e of the statute.
But I have little difiiculty on that ground, because I think
the present case truly comes within the meaning of that
statute. The siaik section is directed against all traffick-
ing whatsoever in base coin ; and the party here is un-
doubtedly in possession of a coin which comes within the
description of the statute, as resembling a coin of the
realm, and he confessedly intends to pass that off instead
of a genuine coin. He avails himself of that resemblance
to get the value of the genuine coin, which it resembles.
By reason of that resemblance, he substitutes the base
for a true coin, and thus puts the base coin into circula-
tion. This is a fraudulent dealing with the coin of the
realm, which I think clearly brings the case within the
meaning of the act. There is another point which I
AND CIRCUIT COURTS OP JUSTICIARY. 515
should like to mention : This section of the act quoted '^"j^^
refers to two crimes — the uttering of bad coin, resem- Miooney.
Ming good silver coin ; and again, the uttering such a HighComt.
second time -within ten days. The indictment does not issi-
state which of these two things the pannel is charged '^^^ '^°'°-
with. It merely says that the pannel is guilty of the of-
fences set forth in the section, or of one or more of them.
But if it is intended to charge the second statutory of-
fence, the time at which the second uttering took place
should have been stated. No doubt the indictment says,
' time above libelled,' — but this cannot mean at the very
same moment, because the places are different. It ap-
pears to me that the indictment should have stated the
precise time to which it refers.
Lord Cowan. — ^This appears to me one of those cases
in which the authority of the law of England ought to
have great weight with us ; and, accordingly, it appears
to me, that the decision in the case of Frank truly re-
moves all the difficulty which I should have felt had this
been an open question. That case raised the very point
now before us, for the words there were, * uttering or
' tenderingin payment,' — and the question was, what was
the meaning of uttering, apart from tendering ; and the
view taken was the same as that expressed by your Lord-
ships. Though that is an old case, it has ruled the law
up to the present time, and is referred to as an authori-
tative decision. I agree, therefore, in the construction
which your Lordships have put on the act.
The Solicitor-General, by leave of the Court, struck
out the words ' or of one or more of them.'
The Court, therefore repelled the objection, and found
the libel relevant ; but, on the motion of the Advocate-
Depute deserted the diet pro loco et tempore.
516 CASES BEFORE THE HIGH COURT
Alexander M'Donald, Suspender — Craufurd.
AGAINST
William Lyon and James Main, Respondents — Mure — Watson.
Suspension — Imprisonment^ — Police-*-"Warrant. — Held, 1. That it
is the duty of a Police-offiqer, who apprehends a person without a
warrant, to take him hefore a magistrate, for examination, within as
short a period as practicable.
2. Where a delay of sixty hours had intervened between a party being
so apprehended and being taken before a magistrate, the Court granted
liberation.
No. 88. This was a Bill of Suspension and Liberation, brought
M'Donald i xi ^ ii • ■ j.
-5. Lyon under the loUowmg circumstances : —
and Main. gij^g respondents, who were respectively a police-ofHcer
^Def T^' ^* Kirkintilloch, and one of the rural police of the county
'^^^- of Dumbarton, were called, during the night of 11th
Suspension, j^ygygt 1851^ by gng MilKgan, to apprehend the sus-
pender, on a charge of having broken open Milligan's
house, and assaulted himself and wife. It appeared that
one of the respondents had been awakened by the noise
occasioned by the suspender, in his endeavours to obtain
an entrance into Milligan's house. They accordingly
apprehended the suspender at once, without any war-
rant, and confined him in a room below the Court-
house.
The following day, the 12th of August, the Baillie
Court was held at Kirkintilloch, and also a Small-Debt
Court, presided over by the Sheriff.
The suspender was not taken before either of these
tribunals, but kept incarcerated until Wednesday the
13th August, when he was taken to Dumbarton, and
brought before the Sheriff, who ordered his discharge..
On the same day, a bill of suspension and libera-
tion was presented, on which Lord Cockburn granted
interim liberation, on caution being found to the extent
of £5.
AND CIRCUIT COURTS OF JUSTICIARY. 517
Craufurd, for the suspender, — admitted that the ori- No. 88.
ginal apprehension might be lawful without a warrant ; «. Lyon
but the subsequent detention, for so long a period, before ^""^ ^^'°'
taking him before a magistrate, was illegal. By the 3d ^DefT *
and 4th William IV. c. 46, under which the burgh officer '"^'-
acted, parties so apprehended were required to be brought Suspension.
before a magistrate within twenty-four hours ; and at
common law it was clear that prolonged imprisonment
without a competent warrant, was an unwarranted act
on the part of the police. In this case, there was no
excuse arising from difficulty in taking the party before
a magistrate ; besides which, the place of imprisonment
was an illegal one.
Mure, for the respondents. — The offence with which
the party was charged, being of a more serious nature
than those ordinarily tried before the Bailie Court, it was
thought advisable that the case should be sent "before
the SheriflF. This at once relieved Lyon, who had no
jurisdiction beyond the burgh of Kirkintilloch ; and, in
so far as the respondent Main was concerned, he had
used every means in his power to obtain for the suspender
an immediate hearing. He had been engaged at a cri-
minal court in Stirling on the day of apprehension ; and
on the following day he had mentioned the matter to the
Sheriff, when holding the Small-Debt Court, when it was
arranged that the suspender should be taken to Dumbar-
ton on Wednesday, which was accordingly done. In
such circumstances, the respondents had done all in their
power to insure a speedy trial, and the bill would fall to
be refused. The place in which the suspender was de-
tained, although not part of the jail, was ordinarily used
as a lock-up.
The Lord Justice-Clerk. — There can be no doubt in
this case. I do not go so much upon the statute 3d and 4th
William IV. which prescribes twenty-four hours as the
longest period during which a person may be detained
(if apprehended without a warrant), without being taken
before a magistrate. That is only intended to define a
518 CASES BEFORE THE HIGH COURT
No. 88. limit which may not be exceeded, and is not at all in-
'f.' Lyr" tended to free the policeman from the obligation incum-
'^"'^ '^^'°- bent on him at common law, namely, to take the party
'"'Dec^T'" before a magistrate at the earliest practicable opportu-
'^^^- nity. Here the suspender was apprehended at an early
Suspension. ^^^^ ^^ Mouday moming, and confined, not in a prison,
but in a room under it, during the whole of that day.
It is said that one officer was obliged to go to Stirling ;
but if so, why did not the other insure his being taken
before a magistrate? It is not pretended that the charge
was one that would have been incompetent to have been
preferred before the Bailies ; but, even had it been, it was
the duty of the other officer either to have taken him to
Dumbarton himself, or obtained the assistance of special
constables for that purpose. The idea of keeping him in
jail from Monday morning to "Wednesday afternoon is
preposterous ; and I would not have thought it possible
that such a delay could have occurred. I think that
twenty-four hours would have been too long, under the
circumstances. I think, therefore, that we must suspend,
not on the ground that the constable had no warrant to
apprehend— on the contrary, I hold that a constable,
called up in the night, in consequence of a brawl in the
street, is entitled, without a warrant, to seize any person
whom he shall find engaged therein ; but then, for that
' very reason, he must, as soon as possible, bring his pri-
soner before a magistrate, in order that the magistrate
may decide w^hether he will at once dispose of the case
himself, or send the culprit to the Sheriff".
LoED CoLONSAY. — I am of the same opinion. Some
little difficulty is made from the circumstance that the
suspender was discharged before Lord Cockburn's warrant
reached Dumbarton ; but that seems to me immaterial.
We must look at the case as though we were deciding it
at the time when the original petition was presented to
Lord Cockburn, and the pannel was still in custody ; in
which case there could be no doubt what course we
AND CIRCUIT COURTS OF JUSTICIARY. 519
should pursue : most undoubtedly we should have granted j^o^f,"^
liberation. "-M"}^
and Mam.
High Court.
The other Judges concurred, and passed the Bill of Dec. s.
Suspension. — : — '—
SBspension.
Albx. Hamiiton, W.S. — John Forresteb, W.S. — Agents.
Alexander Watt, Suspender — Logan.
AGAINST
Andrew Home, Respbndent — Graufurd — Millar.
Indictment — Theft — Embezzlement — Breach of Trust — Relie-
VANCY. — Held, that where yarn is given to a workinan, for ihe pur-
pose of being woven into a web, he is guilty of theft, if he appro-
priate the yarn to his own use.
Burgh Court — Competency. — Held not to be a good objection to the
sentence of a Burgh Court, that the party who acted as Assessor to
the Magistrate was also joint Procurator-fiscal for the county.
This was a Suspension of a Sentence of the Burgh No. 89.
Court of Forfar, whereby a sentence of six months' im- Home.
prisonment was imposed on the suspender. HighCourt.
This conviction took place before the Magistrates, on i85i.'
a charge, setting forth that the suspender was guilty of Suspension,
theft, ' in so far as, on the 26th day of May 1851, or about
' that time, the said Alexander Watt, having received
' from James Moffatt, residing in Victoria Road of For-
' far, and warehouseman to Charles Lucas and Company,
' manufacturers in North Loan of Forfar, from their
' premises in the north end of the North Loan of Forfar,
' in the burgh, parish, and county of Forfar, a certain
' quantity of yarn and tow for woft and weft, to be woven
• into a web, as therein mentioned, did, wickedly and felo-
' niously, time and place foresaid, theftuously steal and
' away take the said quantity of flax, yarn, and tow, the
• property of, or in the lawful possession of, the said
520 CASE8 BEFORK THE HIGH COURT
No. 89. ' Charles Lucas and Company, or the said James Moflatt,
Home.' ' their warehouseman, or one or other of them.'
High Court. LoGAN, for the suspeuder, objected to the conviction,
1851.' inasmuch as the joint Procurator-fiscal had acted as
Suspension, assessor ; but it appearing that the party in question was
fiscal for the county only, this objection was overruled.
He then maintained that the charge was insufficient
and irrelevant, inasmuch as the species facti set forth did
not amount to the crime of theft, however this might
have supported a charge of breach of trust or embezzle-
ment. Here the material was given to be taken away
and manufactured off the premises, and returned, not in
forma specifica, but in the shape of a manufactured article.
Had he woven the materials before appropriation, it
would not have been theft, because the species would
have been changed. But, if so, neither was the taking of
the yarn theft, in the circumstances. Suppose one man
in the country to borrow a quantity of yarn from a fellow
workman, being short himself, would both be guilty of
theft ? Such cases were of frequent occurrence ; and it
was not alleged that the yarn given to the suspender was
of any peculiar quality or value. (Cases of Brown,
Swinton, vol. ii. p. 394 ; Bell's Notes, p. 9 ; Bradley, 6th
February 1850, ante, p. 301.)
Ceaufued. — The yarn was not woven, so that no
change of species had taken place. It was given for a
special purpose ; and a felonious appropriation of pro-
perty, under such circumstances, had been latterly held
to be theft.
LoED Wood. — I think this charge of theft a good
charge, and relevantly framed. The yarn was given to
the suspender, for a special purpose, viz. to be woven into
a web, and then returned. Instead of weaving it, he
appropriated it. Whether it would have made any dif-
ference had he woven it before taking it for himself, I do
not say ; but that was not done. I cannot see any sound
distinction between this case and that of Brown and
others. The appropriation of an article entrusted for a
AND CIRCUIT COURTS OP JUSTICIARY. 621
special purpose only, and then to be returned, has been No. as.
repeatedly held to be theft. That is -just this case. The Home!'
yarn was to be returned, though in the form of web. High Court.
Many cases may be put illustrative of this : as, if a man ^i^g^sf/
is entrusted with a horse to sell, and to deliver the price suspension.
to his master, could there be any doubt that it would be
theft, equally whether he appropriated the horse before
sale, or the price afterwards. In the one case it would
be theft of the horse, and in the other of the money.
Lord Ivory. — I concur. I cannot distinguish between
this case and those put by Lord Wood. The yarn was
given for a special purpose ; and in violation of the obli-
gation under which he received it, the suspender took it
for himself. There is a plain distinction between such a
case as the present and the case of a pledge. There the
pledger parts with the property in the goods, and the
broker acquires, by force- of special contract, a proprium
jus in them; so that not only cannot the pledger re-
demand them, except on repayment of the loan, but he
may even steal them from the pawnbroker. This, how-
ever, is a totally different case.
Lord Colonsay. — T concur. Perhaps there is no part
of our law which is more involved in obscurity, as pro-
pounded by our elementary writers, than the distinction
between breach of trust and theft. These matters have,
however, been rendered more distinct of late ; and I
think the present case one of theft. The property was
given for the special purpose of being returned, after a
certain operation had been performed upon it. It was
not subjected to that operation, but appropriated to the
party's own use. I think this constitutes theft.
Lord Cowan. — I am of the same opinion on the facts,
as stated. At the same time, I do not wish to commit
myself to holding, that it would have made no difference
in the nature of the offence, had the yarn been actually
woven before the party took it. That point, however,
does not occur here, and I agree with the rest of the
Court.
522 CASES BEFORE THE HIGH COUET
No. 89. The Lord Justice-Cleek. — I am of the same opinion.
Home!" In such casBs as this, I am always glad to hear the opi-
High Court, nions of my brethren ; because, although the distinction
^iTfiK between theft and breach of trust seems very much bro-
Suspension. kcH in upon by recent decisions, I have ever been of
opinion, that theft, under trust, was a known crime,
and that the property being under trust, constituted
the offence an aggravated charge of theft. I have also
been long of opinion, that we were too much in the
habit of regarding such offences as embezzlement, and not
theft ; and that breach of trust constituted the former
crime, and not the latter. However, about the year
1830, a series of cases began, in which the true nature of
the crimes was carefully considered, and which led to a
more accurate exposition of the law. One of the most
frequent of these cases was, that of a person having
handed over property to another, for a special purpose,
defined by the owner, and for no benefit to the recipient
except remuneration for his skill and trouble. In such
cases, it could make no distinction where the work was
to be performed, whether in the house of the employer
or the employed. Neither can it be held to make any
difference here, whether the weaver, when he got the
yarn, was to weave it on his master's premises, or at his
own home. He had it for a special purpose, as his mas-
ter's servant, and had no separate possession of his own.
Without entering into any niceties, as to whether there
is any difference between custody and possession, it is
enough for the present case to say, that I hold the work-
man is just the hand of the master, for the purpose of
temporary keeping and safe return ; and that, in such
circumstances, if he make away with the article, he is
guilty of theft. Even substitution of a similar article
would be against the honesty of the transaction; for
whilst, in some cases, it might be as good, in others it
might not, and the whole value of the manufacture
might depend upon the use of the identical article given.
It is therefore necessary to be very explicit on this point,
AND CIRCUIT COURTS OP JUSTICIARY. 523
more especially if, as hinted, workmen are in the habit of No. 89.
lending each other yarns. Whilst I have no doubt this Home."
case is one of theft, in so holding, we do not interfere HighCourt.
with the case we recently decided, arising out of pledge, mu
In that case there was a special contract between the suspension
parties, and the rights arising therefrom were totally
different from anything here. In such a case, embezzle-
ment, or breach of trust, under the special contract, is
the appropriate nomen juris.
The Bill of Suspension was accordingly refused, with
expenses.
WoiHEBspooN & Mack, S.S.C Sang & Adam, W.S.— Agents.
Present,
The Lord Justice-Clerk,
Lords Cockbtjbn and Ivory.
John Simpson, Suspender — Ogilvy.
AGAINST
Alexander Crauford and George Dill, Respondents — Penney.
Suspension — Statute 2d and 3d Will. IV. c. 68 — "Warrant. — A
conviction under the 2d Section of the Act 2d and 3d Will. IV. c. 68,
set aside, in rpspeot that the warrant for citing the accused did not
bear that it proceeded on the oath of a credible witness, in terms of
§ 11 of the statute.
On the 1st December, the respondents, Alexander No. 9o.
Ceauford, writer in Lauder, and George Dill, residing craw^ford.'
there, joint procurators-fiscal before the Justice of Peace High Court.
Court for the district, presented a petition and complaint, fgji. "
founding on the act 2d and 3d Will. IV. c. 68, \ 2, inti- suspension.
tuled, ' An act for the more effectual prevention of tres-
524 CASES BEFORE THE HIGH COUKT
No. 90. ' passes in pursuit of arame in that part of Great Britain
Simpson ».,„,„, , , ,
Crawford. ' Called ocotland. '■
High Court. The petition set forth, ' That notwithstanding of said
1*851. ■ ' act, John Simpson, farm servant, now or lately residing
Suspension. ' at Huntington, in the parish of Lauder, and county of
' Berwick, has been guilty of the said crime specified in
' the said statute, actor, or art and part.' The petition
concluded with a prayer to the Justices to grant warrant
to apprehend the said John Simpson, and to bring him
before any one or more of them, to answer the complaint,
and for the imposition of the statutory fine of £5, with
expenses, and failing payment, for imprisonment for a
period not exceeding two calendar months.
Following on this petition a warrant was granted in
these terms : —
' Lander, \st December 1851. — Having considered the
' foregoing petition, grants warrant to constables of Court
' for serving a copy thereof, and of this deliverance, upon
' the therein designed John Simpson, and for citing him
' to appear personally, to answer to it, within the Town-
^ For Section Second, see ante, p. 463.
Section 1 1 enacts, ' That the prosecution for every offence punishable
by virtue of this act, shall be commenced within three calendar months
after the commission of the offence; and that where any person shall be
charged on the oath of a credible witness with any such offence before
a Justice of the Peace, the Justice may summon the party charged
to appear before himself, or any one or two Justices of the Peace, as
the case may req[uire, at any time and place to be named in such sum-
mons; and if such party shall not appear accordingly, then (upon proof
of the due service of the summons, by delivering a copy thereof to the
party, or by delivering such copy at the party's usual place of abode
to some inmate thereat, and explaining the purpose thereof to such
inmate) the Justice or Justices may either proceed to hear and deter-
mine the case in the absence of the party, or may issue his or their
warrant for apprehending and bringing such party before him or them,
as the case may be ; or the Justice before whom the charge shall be
made, may, if he shall have reason to suspect, from the information
upon oath, that the party is likely to abscond, issue such warrant in
the first instance, without any previous summons.'
AND CIRCUIT COURTS OP JUSTICIARY. 525
' hall of Lauder, upon Wednesday the 10th day of no.so.
' December current, at 12 o'clock noon, and for citing SforX"
' both parties for the same time and place. Highiconi.
(Signed) ' A. Valence, J. P: »j^«- f- '
In obedience to this citation the suspender appeared, ^ 7—
1 rjT ' Suspension,
and after some procedure, was convicted and sentenced
on the 10th December, to pay a penalty of £2, 10s. with
17s. 6d. of expenses, failing which, to be imprisoned for
two months.
A bill of suspension and liberation having been pre-
sented,
Ogilvy, for the suspender, pleaded, inter alia, that the
whole proceedings were irregular and incompetent, and
must be quashed and set aside, in respect that the war-
rant for the citation of the suspender did not bear to
proceed on the oath of a credible witness, as required by
§ 11 of the statute. This was a statutory proceeding,
and must be regulated strictly by the provisions laid
down in the statute. — Smith v. Forbes, High Court, 22d
July 1848, Arkley, p. 508 ; Russell v. Lang, High Court,
1st June 1844, Broun, vol. ii. p. 21].
Penney, for the respondent, argued, that the rule
prescribed by ^ 11 of the statute was applicable only
where the proceedings took place in the absence of the
accused. Here the suspender voluntarily attended the
citation. — Philip v. Earl of Rosslyn, 14th June 1833;
Scottish Jurist, vol. v. p. 433. Besides, in Smith's case,
the warrant granted was for apprehension, the petition
alsa^being founded on § 1 of the statute.
The LoED Justice-Clerk. — There is no doubt that
the Court must give effect to this suspension. The pro-
ceeding is entirely under the statute, and the rule laid
down in J 11 is binding. There is no room for the con-
struction|.that it applies only to cases in absence. The
Gd^eloi Philip v. Earl of Rosslyn was brought under the
notice of the Court in Smith v. Forbes, and I remarked
then that the circumstances of these cases were quite
different. Lord Rosslyn had seized the boy, and he was
526 CASES BEFORE THE HIGH COURT
No. 89. kept in a cellar for the night ; he was afterwards tried
CrawfOTd.' under Section 1 of the act.
High Court. Lords Cockburn and Ivory, the other Judges pre-
Dec. 22. , 1
1851. sent, concurred.
Suspension.
The Court suspended and liberated, with expenses.
John Cosbns, W.S., — Gibson-Cbaigs & Co., W.S., Agents.
GLASGOW WINTER CIRCUIT.
Deg_ 22. Judge — Lord Colonsay.
1851. '
Her Majesty's Advocate. — Fordyce A.D.
AGAINST
William Cameron — Hill.
TuEPT — Amotio. — In a charge of stealing a watch, the owner deponed
that the pannel made a snatch at the guard-chain by which the watch
was secured, so as to draw it out of his pocket ; but the chain was
not broken, nor was anything actually carried off. Question, whe-
ther this amounted to theft ?
No. 90. William Cameron was charged with Theft, especially
Camerra. whon Committed by a person who has been previously
Glasgow, convicted of theft :
Dec. 22.
In so far as, on the 6th day of October 1851,. or on one or other of
the days of that month, or of September immediately preceding, or of
November immediately following, in or near Miller's Place, in or near
Saltmarket Street of Glasgow, you the said William Cameron did,
wickedly and feloniously, steal and theftuously away take from the
pocket or person of Archibald Dove, upholsterer, then and now or
lately residing -itfter near New Wynd, in or near Glasgow, a silver or
metal watch, the property, or in the lawful possession, of the said
Archibald Dove : Aid you the said William Cameron have been pre-
viously convicted of theft.
The pannel pleaded Not Guilty.
1851.
Theft.
AND CIRCUIT COURTS OF JUSTICIARY. 527
Archibald Dove deponed : I know James Aitken. I was with No. 90.
him on Monday the 6th Octoher, in the evening, in the Sal'tmarket. William
I saw a crowd at the corner of Miller's Place. I approached the '-
crowd. I saw the prisoner there. He was at ray left side, rubbing d^°^'
against me. I had a watch and guard-chain. The prisoner made a 1851.
grip at the chain, and drew the watch out of my pocket. I caught it, TheftT
and retained it. I called " Stop thief." The prisoner ran. Aitken
and I followed. He was caught at the corner of a close by a police-
man.
Jambs Aitken. — I was with Archibald Dove, on the eth October,
at the corner of the Saltmarket. He had a watch and chain. At
Miller's Place there was a crowd. Dove went into the crowd. I saw
the prisoner near Dove, and press close upon him, and make a catch at
the chain, and give it a pull. I did not see whether he got the watch
or not. I observed the chaii* in Dove's hand. Dove called " Stop
thief." We pursued the prisoner. A constable caught him.
This constituted the evidence on the part of the pro-
secution, with the exception of the previous conviction
against the pannel.
Hill, for the pannel, argued that, as the chain was not
broken nor the watch detached, this did not amount to
the crime of theft, but merely to an attempt to commit
theft, which was not an indictable offence.
FoRDYCE, for the Crown, replied, — In cases of theft,
the amotio was sufficient, when the thing had been moved,
however slightly, from its place. Here the watch was
removed from the pocket of the owner. It was of no
importance that the chain was not broken, nor the watch
carried off, any more than where a thief, after removing
things from a shelf or press, is caught and prevented from
carrying them away. The case of ConoUy, Ayr, October
1849, where a precisely similar objection was repelled,
ruled this case.
Lord Colonsay, in charging the Jury, said that, al-
though he was prepared to state the general principle of
law which guided the point, still he thought it a question
for the .Jury, on the whole evidence, to say whether there
was sufficient proof that the pannel had at any time got
complete possession of the watch. He did not think it
was enough to say that the pannel had got the chain in •
2 M
528 CASES BEFORE THE HIGH COURT
£?,•,?'• his hand. Were the Jqi-y satisfied that the watch was
William ■' 1 1 1 • ■
CameroD. reuioved by the pannel from the pocket, or had he it in
Glasgow, iiig iiand for any period, however "short ?
1851.
Theft The Jury found the charge Not Proven,
Dec. 24. Judge — LoED Colonsay.
1B61. ,
Her Majesty's Advocate — Fordyce A.D.
AGAINST
Edward Yates and Henry Park.es — Logan.
Rape — Assault with intent to Ravish — Process — Insanity —
Evidence. — 1. In a charge of rape, ^s also assault with intent to
ravish, the assault with intent found proven, on a girl who was
alleged to have heen a prostitute.
2. In a trial for rape, or assault with intent to ravish, the principal
witness, who, at the time of the offence being committed, was of
weak intellect, became insane a few days before the trial. Medical
evidence having been adduced, to prove that she was not in a fit
state of mind to give credible testimony, she was not Examined, but
was produced, for the purpose of being identified by the other wit-
nesses.
No. 91. Edward Yates and Henry Parkes were charged
Edward _ °
Yates and with the Crime of Rape, as also Assault, especially when
Parkes. Committed with intent to Ravish, or with one or other of
Glasgow, these crimes.
18S1. The crimes were charged as having been committed
Rape and ou the night of the 20th or morning of the 21st of Oc-
tober 1851, at or near five different places, on the road
or path leading from Airdrie, in the parish of New Monk-
land, to Calderbank, in the parish of Old Monkland, and
upon ' Elizabeth Smith, sewer, now or lately an inmate
' of the New Monkland poor-house, in the parish of
' New Monkland aforesaid, a person who is of infirm
' intellect.'
AND CIRCUIT COURTS OF JUSTICIARY. 629
The pannels pleaded Not Guilty. No. 91.
The evidence material to the charge consisted of the Vat^^and
testimony of three eye-witnesses, and was in substance PaS.
as follows :— Glasgow.
These three persons were in Airdrie together, bet\yeen ^ig'si*'
eleven and twelve o'clock on the night of the 20th Octo- Rape and
ber. At that time they met the pannels coming into •*-^^^""-
Airdrie, near Graham Street. The pannels spoke first,
and told the witnesses not to go that road, as there was
a man lying there nearly murdered. They desired the
witnesses to stop a few minutes, as they were going for
the police. The pannels shortly retm-ned, and said that
the police would not interfere, as it was not in their dis-
trict. All the five men then went along the Gartlee
road, towards Pit No. 3, until they came to the spot
where the man was said to have been lying. They found
no man there ; but a little farther on, they discovered a
woman lying on her back "on the road, and her person
exposed. ' She was the same as if she had been dead.'
This woman the witnesses identified as being Elizabeth
Smith, the girl alluded to. At first she appeared to be
unconscious, and was unable to stand. She asked for
some water, which one of the three witnesses gave her.
She then seemed to come to herself, and complained
of her breast. Looking round at the two pannels,
who were present, she cried, ' Save me from these two
' men !' and clung to the three witnesses for protection.
The latter then proceeded together along the footpath to
a lodge near Gartlee Pit, No. 3, an uninhabited place, for
the shelter of the men working about the pits. Before
reaching this lodge, the two pannels rushed forward,
pushed the girl and one of the witnesses down, and rolled
over the girl, one of the two at the same time uttering
expressions clearly indicative of a criminal intention.
When the girl was pushed down, she screamed. She
was then rescued by the three witnesses, arid taken to
the lodge referred to, and left there. The three pro-
ceeded homewards, but had not gone above thirty or forty
530 CASES BEFORE THE HIGH COURT
No. 91. yards, when they heard screams, as if of a female, pro-
Yatesand ceeding from the lodge. On returning, and re-entering
Parke's. ^^^ lodge,. One of the pannels and the girl were seen
Glasgow, rolling on the floor. She was struggling to get away,
^186?*" ^^^ screaming ; but being rescued by the witnesses, she
Eapeand S^^ "F ^^^ ^^^ ^^^- ^^^ '^^^ *h^" pursucd by both
Assault, pannels, and thrown down, when a scene followed which,
as detailed by the witnesses, shewed forcible connexion
with both pannels, who, as the witnesses swore, assisted
each other, by holding the girl, till each in turn accom-
plished his purpose.
About ten o'clock on the morning of the 21st, the
girl went and lodged a complaint at the police-office,
Airdrie. Her clothes were found to be much soiled and
torn ; and, according to a medical report, which was
made de recenti, there was evidence of very considerable
violence and depression of spirits.
Two medical men examined on the trial gave evidence
that the girl, who had previously been of weak intellect,
had become insane three or four days before the trial,
and that she was not then in a fit state to give evidence.
They, however, stated that the insanity, which was recent,
might not be permanent.
]n these circumstances the girl was not examined as a
witness, but was simply shewn for identification by the
other witnesses. It was, at the same time, explained to
the Court, that the reason why the trial had not been
postponed, on the fact of the girl's insanity becoming
known, was, that besides the difficulty of knowing whe-
ther that insanity ipight not be permanent, the state of
her intellect was such, as even at best to render it ex-
tremely doubtful whether she was at any time a compe-
tent witness for examination.
From evidence, as to the character of the girl, which
was led in exculpation, it appeared that she was known
to the police as a street-walker ; and one witness ex-
pressly swore that he had known her as a prostitute for
several years.
AND CIRCUIT COURTS OF JUSTICIARY. 531
FoRDYCE, on the part of the Crown, contended that No. si.
the evidence was conclusive as to the commission of the Yates and
crime. The nature of the assault — the state of exhaus- Parbea.
tion of the girl, and her screams, as detailed by the eye- Glasgow,
witnesses — were amply sufficient to negative tlie idea of ^851. '
her having consented. Besides, her cries for protection Rape and
against the ptuinels, on recovering from her unconscious- •'^^^*"'*-
ness, afforded the strongest evidence' of violence on the
part of the pannels, and want of consent on her part,
even before the witnesses came up. The evidence on
the part of the pannels was grossly exaggerated, and
even if true, it was clear in law that, rape might be
committed on a prostitute.
Logan, for the pannels, argued, that as the principal
witness could not be examined, the trial ought to have
been postponed. Great hardship to the accused arose
from her not being put into the witness-box ; and it was
therefore to be presumed, that, had she been examined,
she would have admitted that she gave consent. The
conduct of the alleged eye-witnesses was so extraordi-
nary, as altogether to taint their evidence, and to raise
the presumption, that they had grossly exaggerated the
whole circumstances, and that they were utterly unworthy
of credit. Moreover, the character of the girl was such
as to imply that there had been no forcible connexion.
Lord Colonsay charged the Jury to the effect, that if
they believed the eye-witnesses, there could be no doubt
of the character of the assaults ; but, considering that
their conduct was most extraordinary, in standing by
without attempting to prevent an outrage such as th^y
themselves described, it was for the Jury to say whether
they could be altogether relied on, especially looking to
the character of the girl, as spoken to by the witnesses
for the defence, aiid the darkness of the night when the
alleged acts were committed, when possibly the witnesses
could not observe so minutely as they professed to do the
facts relating to connexion having taken place. If the
Jury, however, believed that forcible connexion had taken
532 CASES BEFORE THE HIGH COURT
No- 91- place, then rape was relevantly and properly charged,
Yates and whatever the character of the girl. But, in his opinion,
Paikes. looking at her proved character — the uncertainty of
Glasgow, vision in the darkness of the night — the extraordinary
1851. conduct of the witnesses, and also the fact, that the
Rape and Court and the Jury had no opportunity of knowing from
the girl herself the real stat& of matters — the safest
course for the Jury probably was to find assault with
intent.
The Jury found the pannels Guilty of one act of
assault with intent to ravish.
In respect whereof, the pannels were sentenced to
eighteen months imprisonment, with hard labour.
HIGH COURT.
Jan. 12. Present,
18.52.
The Lord Jostice-Clerk,
Lords Wood and Colonsay.
John Park and Others, Complainers — Sol.-Gen. Deas — Logan.
AGAINST
The Eight Hon. John Hamilton Dalrymple, Earl op Stair,
Respondent — Dean of Faculty Anderson — J.-M. Bell.
Jurisdiction — Review, Civil and Criminal — Statute. — A con-
viction under the 9th Section of the Solway Fishery Act, 44th
Geo. III. c. xlv., is not subject to review by the Court of Justiciary.
No. 92. This was a suspension of a conviction, followed by a
TJoT^lr 3.71(1
Others v. Sentence of imprisonment, obtained against the complain-
^*'|tah\* "^ ers at the instance of the respondent. The prosecution
High Court, was founded on the Solway Fishery Act, 44th Geo. III.
"^^852.^ c. xlv. (local and personal), entitled, ' An act for the
Suspension. ' better regulating and improving the fishpries in the
AND CIRCUIT COURTS OF JUSTICIARY. 533
' arm of the sea between the county of Cumberland, and J^°- S2-
•' Park and
' the counties of Dumfries and Wigton, and the stew- others ?>.
' artry of Kirkcudbrightj and also the fisheries in the stair.
' several streams and waters which run into and com- High Court.
Jan. 12.
' municate with the said arm of the sea.' i8S2.
The Earl of Stair is heritable proprietor of the fish- Suspension.
ings in the water or river called the Cross water of Luce,
which runs into and communicates with the arm of the
sea described in the statute.
He therefore presented a petition to the Justices of
the county of Wigton, setting forth sections 9 and 3.7
of the statute.^
1 Section 9 provides — ' That from and after the passing of this act,
if any person or persona, not being the owner, occupier, or farmer of
a fishery, or the agent, servant, or fisherman of some owner, occu-
pier, or farmer of a fishery, or other person authorized by them, some
or one or other of them therein lawfully authorized, shall at any
time or times in the year, or by any ways, means, or device whatso-
ever, take, kill, or destroy, or attempt to take, kill or destroy any
salmon, grilse, sea-trout, salmon-trout, or whitling, otherwise herling,
or any other fish whatsoever, or any of the brood, spawn, or fry
thereof, in any river, rivulet, brook, stream, pond, pool, or other
water, mill-lead, mill-dam, sluice, or cut, which runs into or other-
wise communicates with the said arm of the sea, every such person
or persons shall, for the first ofience, forfeit and pay the sum of £5 ;
for the second ofience, the sum of £15 ; and for the third and every
other offence, the sum of £20 ; and shall also forfeit and lose the fish
by him or them taken, together with the baskets, creels, packages,
rods and lines, nets, and all and every engine and device whatsoever
which shall have been used by any such offender or offenders, in the
taking, killing, and destroying, or attempting to take, kill, or de-
stroy, any such fish ; to be distributed and disposed of, cut in pieces,
or otherwise destroyed, in the manner hereinbefore directed with re-
spect to forfeitures for fishing within the times hereby prohibited.'
Section 17 enacts — ' That, in case sufiicient distress or distresses shall
not be found, or such penalty or penalties shall not be immediately
paid, that then it shall and may be lawful for any such Justice or
■ Justices of the Peace, or Sheriff, or Stewart-Depute, or their Substi-
• tutes, or other Magistrates aforesaid, and he and they is and are
• hereby respectively authorized, empowered, and required, for the
■ first offence, to commit every such offender or offenders, to the gaol
■ or house of correction for the county, shire, stewartry, division, or
534 CASES BEFORE THE HIGH COURT
No. 92. The complaint then stated : —
Park and ^
^"^™^^- 'That, notwithstanding of the said enactments, John Park or
Stair. ' Parks, blacksmith. New Luce ; John Waugh junior, residing in the
Hiffh Court ' vi'l^gs of New Luce j and Robert Dickson, also, residing in the said
Jan. 12. ' village of New Luce, did, all and each or one or other of them, in
^'^^^' ' violation thereof, on Friday, the 18th day of July 1851 years, or on
Suspension. * Qjjg qj other of the days of that month, with a pointed stick or leis-
' ter, or some other weapon to the petitioner uqknown, take, kill, or
' destroy, or attempt to take, kill, or destroy, a salmon-grilse, salmon-
' trout, or some other fish, in the Cross Water of Luce, in the parish
' of New Luce, and that without leave of the petitioner, or any other
' person, thereunto lawfully authorized, in terms of said act, whereby
' the said John Park or Parks, John Waugh junior, and Robert Dick-
' son, have forfeited the said penalty of £.5 sterling each, together
' with the costs of conviction.'
The complaint proceeded : —
' May it therefore please your Honours to consider the premises,
' and to grant warrant for summoning the said John Park or
' Parks, John Waugh junior, and Robert Dickson, to appear
' before any one or more of Her Majesty's Justices of the Peace
' for the county of Wigton, at such time and place as may be
' fixed by your Honours, to answer to this complaint ; and
' thereafter to fine and amerciate each of them in the sum of
' place, for vrhich such Justice or Justices aforesaid shall act, for
' any time not exceeding three months, nor less than one calendar
' month ; for the second ofiience, for any time not exceeding six months,
' nor less than two calendar months ; and for the third and every other
' offence, for any time not exceeding nine months, nor less than three
' calendar months, there to be kept at hard labour, and be and remain
' without bail or mainprize.'
The same section farther provides — ' That all and every the pecuni-
' ary and other penalties and forfeitures hereby inflicted, may be sued
' for, recovered, and adjudged, on all and every offence and offences
' against this act, heard and determined by and before any one or more
' Justice or Justices of the Peace, within that part of Great Britain
' called England ; or any Justice or Justices of the Peace, or Sheriff,
' or Stewart-Depute or their Substitutes, or Magistrates of Royal
' Burghs, within that part of Great Britain called Scotland, for the
' county, shire, stewartry, division, burgh, or place wherein any offen-
' der or offenders against this act shall be, or reside, or wherein or near
' to which the offence or offences shall be committed, by and upon the
' oath or affirmation of one or more credible witnesses, or by the con-
' fession of the party or parties themselves, in England, and, in like
' manner, by the oath or oaths of the parties themselves, in Scotland.'
AND CIRCUIT COURTS OF JUSTICIARY. 535
--- r--. — >-- a »..»•.. ....^ 6 "" Suspension.
' nesses tor both parties.
The complainers were couvicted, under this complaint,
before the Justices of the Peace for the county of Wig-
ton, at Stranraer. The following are the ternas of the
conviction : —
' The Justices having considered the complaint, and the proof ad-
' duced. Find the complaint proven, and thereafter fine and amerciate
' each of the said John Park or Parks, John Waugh junior, and Ro-
' bert Dickson, in the sum of £5 sterling of penalty, with no expenses ;
' and failing immediate payment thereof to the complainer, grant war-
' rant to commit each of the said John Park or Parks, John Waugh
' junior, and Robert Dickson, to the jail of Stranraer, for the period of
' three months from this date, therein to be kept to hard labour, unless
' the said penalty shall be sooner paid : Against which judgment, the"
' defenders intimated their intention to appeal to the next Quarter
' Sessions of Wigtonshire.
(Signed) ' Patrick Maitland, J. P
' John M'Taggart, J. P.
' Nathl. Taylob, J. P:
The warrant of imprisonment was in these terms : —
' Whereas, John Park or Parks, blacksmith. New Luce; John
' Waugh junior, residing in the village of New Luce ; and Robert
' Dickson, also residing in the said village of New Luce ; have respec -
' tively been convicted before us, three of Her Majesty's Justices of
' the Peace for Wigtonshire, of having, on the 18th day of July last,
' or on or about that time, with a pointed stick or leister, taken, killed,
' or destroyed, or attempted to take, kill, or destroy, a salmon, grilse,
' salmon-trout, or some other fish, in the Cross Water of Luce, in the
' parish of New Luce, and that in contravention of the ninth section
' of the act 44th Geo. III. c. 41, intituled, &c., and have been sen-
' tenced and adjudged to pay and forfeit, for the said offence, the sum
' of five pounds sterling each of penalty ; the said several sums to be
' paid to the Right Hon. John Hamilton Dalrymple, Earl of Stair, the
' complainer ; and whereas, the said John Park or Parks, John Waugh
' junior, and Robert Dickson, have failed to j)ay down to the com-
' plainer the said penalty and expenses, in terms of the said statute,
536 CASESB EFORE THE HIGH COURT
No. 92. ' warrant is hereby granted to commit the said John Park or Parks,
Park and ' John Waugh junior, and Eobert Dickson, respectively, to the jail of
The 'Earl of ' Stranraer, for the period of three months from this date, unless the
Stair. ' said penalty and expenses shall, respectively, be sooner paid ; and
High Court. ' warrant also to the keeper of the said jail to receive, detain, and
Jan. 12. i liberate them accordingly.
__1!!?1_ (Signed) ' Nathl. Taylor, J. P.
Suspension. ' Pat^. Maitland, J. P.
' John M'Taggart, J. P.'
A bill of suspension and liberation having been pre-
sented, proceeding on various grounds of irregularity and
incompetency, answers were given in for Lord Stair, in
which he objected, in limine, to the jurisdiction of the
Court of Justiciary as a court of review in such cases.
J. M. Bell, for the respondent, objected to the com-
petency of the bill of suspension. This was not a crimi-
nal process, but a conviction under a local statute, as to
fisheries in the Sol way. There was therefore no power of
review in the Court of Justiciary. That this was not a cri-
minal proceeding, was evident from these considerations:
1st, The complaint did not proceed with the concurrence
of the Procurator-fiscal, but was instituted by a party in
the character of a common informer. 2c?, It was merely
a contravention of a statutory prohibition. Sd, So far
was it removed from a criminal procedure, that the charge
might, by § 17, be proved by the oath of the party ac-
cused. 4:th, The primary sanction of the act is a pecu-
niary penalty alone ; the power of imprisonment is only
subsidiary for recovery of the fine, and that power is at
an end when the penalty is paid.
That this is the true nature of the procedure, is evident
from the whole tenor of the act, and the provisions made
by the various sections of it. In analogous cases, the
Court has declined to interfere. — McDonald v. Gray,
High Court, Feb. 17, 1844, Broun, vol. ii. p. 107 ; Dun-
lop V. Hart, Court of Session, June 20, 1835, S. & D.
vol. xiii. p. 1173 ; Phillips v. Steel, Court of Session,
Jan. 12, 1847, D. B. & M. vol. ix. p. 318 ; Somerville v.
Hemman, High Court, June 1, 1844, Broun, vol. ii.
AND CIRCUIT COURTS OF JUSTICIARY. " 537
p. 220 ; Addison v. Stevenson, High Court, July 22, No. 92.
1848, Arkley, p. 505 ; Robertson v. Collins, Court of others".
Session, Feb.']. 6, 1837, S. & D. vol. xv. p. 572; Campbell'^%^^]°^
V. Stratliern, High Court, Nov. 22, 1847, Arkley, p. 386. HighConrt.
Logan, for the suspenders, argued that the cases cited "^ig^g^'
by the respondent were inapplicable. He referred to suspension.
Clark V. Johnston, Court of Sess. Dec. 7, 1 787, M. 1 1,818.
The subject of the statute is one of public importance —
involving the protection, not of a small stream merely,
but of a large arm of the sea. The statutes relating to
salmon-fishing have uniformly been considered matters
of public policy.
The LoED Justice-Clerk. — The Court are of opinion
that this case is entirely ruled by previous decisions.
I also observe, that in § 17, there is a distinction be-
tween the mode of proof in England and in Scotland.
It would be very difficult, indeed, to view as a proper
criminal procedure a charge which may be established
by the oath of the party.
The CouBT therefore sustained the objection, and re-
fused the bill as incompetent, with expenses.
John Mdbbay Jimior, S.S.C. — Dundas & Wilson, C.S. — Agents.
Present,
The Lord Justice-Clebk,
Jan. 24.
Lords Ivory and Cowan. 18S2.
Her Majesty's Advocate.— iSb^.-C^m. Deai — Young, A.D.
AGAINST
Patrick Quillichan — J. Shaw.
Bigamy — Relevancy — Foreign Law. — Held, that it was not a good
objection to the relevancy of an indictment for Bigamy, where the
first marriage was celebrated in Ireland, by a Eomisb Priest, that
the Indictment did not set forth that both parties were Eomao' Ca-
tholics, if the Prosecutor could competently prove that by the foreign
law the marriage was lawful.
538 ■ CASES BEFORE THE HIGH COURT
Patrick Patrick Quillichan was charged with Bigamy :
Quillichan.
High Court. ^^ '^° ^^^ ■*-^) 7°" *^^ ^^^^ Patrick Quillichan being lawfully mar-
Jan. 24. ried to Catherine Dufiy or Quillichan, now or lately residing with
'' John Finnan, a labourer, in or near Currie's Close, Grassmarket,
Bigamy. Edinburgh, a marriage ceremony having been performed between you
several years ago, and as the prosecutor believes in or about the month
of April in the year 1 843 or in the year 1 844, the prosecutor being
unable to specify the time more particularly, by the Eeverend Patrick
Dorrian, then a Roman Catholic clergyman in Belfast, in Ireland, and
now or lately at Loughin Island, near Downpatrick, in Ireland, or by
some other Boman Catholic clergyman to the prosecutor unknown,
within the house in or near Donegal Street, Belfast aforesaid, then oc-
cupied by The Right Reverend Doctor Cornelius Denvir or Denville,
then a Roman Catholic Bishop in Belfast aforesaid, or at some other
place in or near Belfast to the prosecutor unknown ; and yon having
thereafter lived and cohabited with the said Catherine Duffy or Quil-
lichan, as your wife, in Ireland, and also in various places in Scotland,
and particularly in or near Perth, in or near Dundee, in or near New-
burgh, and in or near Edinburgh, you the said Patrick Quillichan did,
on the 2d day of March 1851, or on one or other of the days of that
month, or of February immediately preceding, or of April immediately
following, your marriage with the said Catherine Duffy or Quillichan
being then subsisting, as you well knew, within or near Saint Mary's
Roman Catholic Church or Chapel, Broughton Street, Edinburgh,
wickedly and feloniously, enter into a matrimonial connection, under
the name of Patrick Fox, with Mary Birron or Bums or Kelly, now
or lately residing with John Kerigan, a lodging-house keeper, in or
near Little Hamilton's Close, in or near Grassmarket, Edinburgh, the
marriage ceremony having been performed by the Reverend William
Mackay, then and now or lately a Roman Catholic missionary apos-
tolic, or a Roman Catholic clergyman, and then and now or lately re-
siding at or near Saint Mary's Roman Catholic Church or Chapel
aforesaid.
J. Shaw objected to the relevancy of the indictment,
in so far as it did not disclose that both parties were Ro-
man Catholics at the time of marriage. This made the
distinction between this and the case of Purvis {ante,
p. 124), where the relevancy was sustained, ina'smuch as
in those cases the Court could see that the marriage was
good though irregular. The Irish marriages acts were ex-
press that both parties must be Roman Catholics, to make
AND CIRCUIT COURTS OF JUSTICIARY. 5^9
their marriage by a Roman Catholic priest legal.^ And No. ss.
the presumption in law was, that a person belonged to Quiiiichan.
the established religion, which was Protestant, in Ireland High Court.
[Rogers on Ecclesiastical Law, pp. 657-660). ^852. "
Young. — I have libelled a lawful marriage, — am I to bigamy.
go into detail of the facts and circumstances.
The Lord Justice-Clerk. — Statutes may be quoted
against relevancy.
Young. — No doubt ; but here I have libelled nothing
opposite to statute law. I say the marriage was a lawful
one, and that I am entitled to prove it so under the case
of Purvis.
^ The following are the chief statutory provisions regulating such
marriages : —
The Irish Act, 19th Geo. II. c. 14, § 1 (1745), intituled, ' An Act
' for annulling all marriages to he celebrated by any Popish priest,
' between Protestant and Protestant, or between Protestant and Papist,'
&c., enacts —
' That every marriage that shall be celebrated, after the 1st day of
' May 1746, between a Papist and any person who hath been, or hath
' professed himself or herself to be, a Protestant, at any time within
' twelve months before such celebration of marriage, or between two
' Protestants, if celebrated by a Popish priest, shall be, and is hereby
' declared, absolutely null and void, to all intents and purposes, with-
' out any process, judgment, or sentence of law whatsoever.'
The Irish Statute, 33d Geo. III. c. 21 (1793), entitled, 'An Act
' for the relief of Her Majesty's Popish or Roman Catholic subjects of
' Ireland,' enacts, § 12, —
' That nothing herein contained shall be construed to extend to
' authorize any Popish priest, to celebrate marriages between Protes-
' tant and Protestant, or between any person who hath been, or pro-
', fessed himself or herself to be a Protestant, at any time within twelve
' months before such celebration of marriage, and a Papist, unless such
' Protestant and Papist shall have been first married by a clergyman
' of the Protestant religion.'
The Statute, 3d and 4th Will. IV. c. 102 (August 29. 1833), en-
titled, ' An Act to repeal certain penal enactments made in the Par-
' liameut of Ireland, against Roman Catholic clergymen, for celebra-
' ting marriages contrary to the provisions of certain acts made in the
' Parliament of Ireland,' enacts, inter alia, § 3, —
' That nothing in this act shall extend, or be construed to extend, to
' the giving validity to any marriage ceremony in Ireland, which cere-
' mony is not now valid under the existing laws.'
540 CASES BEFORE THE HIGH COURT
No. 93. The Solicitor-General referred to the case of Ben-
Patrick . * •
Quiiiichan. nison {ante, p. 453).
High Court. The LoRD Justice-Clerk. — I am of opinion that this
1852.' indictment is relevantly framed. The objection runs
Bigamy. , couiiter to the broad principle on which the structure of
an indictment, under the Law of Scotland, is based, and
by which relevancy is decided. Independently of criti-
cal objections to expressions, or to the omission of requi-
site words, and the like, objections to relevancy generally
are of two kinds : — 1 . Objections to the major proposi-
tion, as not correctly setting forth the ofFerice intended
to be charged, or as charging that as an oifence which is
not in law a crime ; and, 2. Objections to the minor pro-
position, or specifications of the facts, as not, if froved,
setting forth the crime charged ; — if proved, for the ob-
jection must assume, that all that is averred \si fully and
legally proved, — proved in the way required by the law
applicable to the particular case, as it may be disclosed
in evidence. But the specification in the minor is only
intended, first, to apprize the pannel of the facts to be
proved against him ; and, secondly, to set forth what is
sufiicient to entitle the prosecutor to prove all that the
law may require, according to the turn which the case in
proof may take.
Between the character of the objections competent
against the major and minor propositions, there is a broad
and marked distinction. The description, in the major,
of that which is charged as a crime, must be complete in
law. In many cases, that is accomplished unanswerably
by certain legal terms which are established names for
crimes — voces signatee — as theft, murder, bigamy — or by
quoting the words of a statute constituting the offence,
or defining it. In other cases, the terms to be selected
may be of great nicety, and the description of the acts
may be very diificult : In such cases, the proposition must
exhaust the law — that is to say, if any fair construction
of the words in one sense leaves a matter which is not
criminal, or if a plain requisite of illegality is omitted.
AND CIRCUIT COURTS OF JUSTICIARY. 541
then something is set forth in the- major of the indict- ^"-/f
ment which, in fair construction, is not neceissarily crimi- QuiUichan.
nal, independently of any special defence in the particu- HighCourt.
lar case. I take the case which occurred some years ago, i8'52.
of a charge of obstructing a presbytery in the discharge Bigamy.
of their duty. The objection was, that obstruction might
not be an illegal, or wrongous, or violent obstruction, —
it might have been by interdict. The answer was — Ob-
struction, in an indictment, being a word descriptive of
hinderance, in point of fact, to duty, excludes all legal
impediments, and denotes acts viafadi—^as obstructing
of revenue officers, formerly a common charge in the
days of illicit distillation.
In stating such objections to the major proposition,
every line of argument is open to the pannel, whether
founded on statutes or common law. The public prose-
cutor, by his major proposition, propounds, as it were, a
thesis for objection. He throws down in the legal arena,
as the schoolmen of old into the arena of metaphysics,
his proposition as a challenge, and must meet every view
of his proposition which can be stated. He throws open
the whole field of legal argument by his challenge ; and
while some theoretical jurists ridicule our form of indict-
ment, experience must satisfy every one, that, practically,
it operates most beneficially, both for the elucidation and
protection of the law, and for the liberty of the subject.
But, then, that proposition once sustained as being un-
assailable, his course in the minor is a much less ambi-
tious and narrower one : He then comes to deal with
a particular person, against whom particular acts are
averred, as bringing him within the offence in the gene-
ral charge in the major.
In objecting to the minor, the paunel's situation is at
once reversed. He must object on the express condi-
tion, either that if the facts are fulli/ and legally proved,
they are not the ofience charged, or that the statement
is so framed, from defect or otherwise, as to omit what
is essential, on the face of the indictment, to be averred,
542 CASES BEFORE THE HIGH COURT
No. 93. or to exclude the riqht to prove what, on the face of the
Patrick , - /• 7
Quiiiichan. indictment, is required : — Observe, on thejace of the in-
High Couvt. didment essential for averment and necessary in proof.
1852. ' The pannel cannot travel out of the indictment in dis-
Bigamy. cussiug the miuor. The major is the law for the case,
and rules the argument. Law, to be proved by statute,
and facts which, if established one way, may raise a de-
fence, are matters on the merits, and for the trial. No
doubt, where such are clearly matters of law, or where
the prosecutor knows and desires to take the facts hypo-
thetically in otie way, we often, for convenience, and to
save a needless trial, take the matter by arrangement on
both sides, in discussion on a wider basis ; but that is
matter of convenience only. The pannel, in the objec-
tions to the minor, cannot for the law of the ease travel
out of the indictment ; and no state of facts which will
prove a defence on the merits, is to be assumed as an ob-
jection to the minpr. It is not enough, in objecting to
the minor, to say, that one state of facts may render that
innocent which the prosecutor avers. He must prove
the facts averred, in such a way as to exclude the de-
fence. But, in relevancy, the question is solely, Is he
entitled to prove them? Now, these general views ex-
clude the objection here stated.
The indictment charges bigamy : That crime consists
in an attempt to marry a second time after the party has
been lawfully married, and knows that such marriage
still subsists. Then the minor has only to state what is
sufficient to entitle the prosecutor to prove the facts. It
avers, time and place libelled, that the pannel was law-
/«<% married to a certain female in Ireland, by a Iloman
Catholic priest. Lawfully/ married. No specification of
the rites, forms, or benediction of any marriage need be
stated. It is distinctly said, that they were lawfully
married. That is enough to entitle the prosecutor to
prove his case. But it is said, that by certain statutes,
the marriage will be void if both parties were not Ro-
man Catholics, and the indictment should have averred
AND CIRCUIT COURTS OF JUSTICIARY. 643
that they were both Roman Catholics. Now, if this No. 93.
particular marriage had required to be set forth in the QuiUichan.
major proposition, — or if this had been an indictment HighCourt.
for celebrating the marriage illegally, — then it would i8S2. '
have been necessary to make the major complete against Bigamy.
all attacks, and an objection on statutes tending to shew,
that in one state of facts, within the words of the major,
the marriage was not valid, or the offence not committed,
would have been quite competent against the major.
But, in the minor, the prosecutor is only required to aver
what is sufficient to entitle him to prove his allegations.
It is not necessary for him, in the minor, to make out a
legal proposition, complete in all its parts, against every
supposable state of the facts. He knows the facts on
which he has to sustain his indictment, and by which it
must be proved. All that it is requisite for him to aver
is, that the pannel was lawfully married in a particular
way — viz. by a Roman Catholic priest — to a certain
female in Ireland, — for that entitles him to prove all
that is necessary to be proved, whatever that may be.
The pannel, on the other hand, is not entitled to ask us
now to inquire into what must be proved, or into what
state of facts will make this first marriage bad. The
prosecutor, at his own risk, says these parties were law-
fully married. What he has to do is, simply to aver
what entitles to prove that. Now, how can I say that
the averment that they were lawfully married, is not
sufficient to entitle him to enter on the proof of a lawful
marriage of the kind which the facts may require, ac-
cording to the law which may be proved to be applicable
to these facts. Whether a Roman Catholic priest could
not marry if both were not Catholics, is a matter of fact
to be inquired into at the trial — ^matter of Irish law, it
may be, but still matter of fact to us. It will form the
subject of investigation if necessary. But it is incompe-
tent to travel out of the minor to find out, by our guess
at interpretation of Irish statutes, this matter of fact,
which the indictment does not raise. Again, this objec-
2n
544 CASES BEFORE THE HIGH COURT
No. 93. tion is stated on the assumption that it may turn out
QuiUichan. that both wsre not Roman Catholics. That is to be in-
High Court, quired into as matter of fact. On the supposition of a
1852. ' possible state of facts which may not be proved, we can-
Bigamy. not Say the indictment in the minor ig wrong, when it is
admitted that it will cover the opposite state of facts.
If both must be Roman Catholics, how can it possibly be
alleged that the prosecutor is not entitled to prove that
fact under his averment that they were lawfully married,
and to carry that out in proof? Again, I repeat, he
need aver nothing but what entitles him to prove all that
he requires to prove in the particular case. He has no
legal definition to give in the minor — ^no proposition to
round off and perfect as a complete legal descriptionj in
the abstract, of a crime : He has simply to aveir that
which is enough to cover and let in all the proof which
his case requires ; and what that proof must be, we can-
not anticipate in order to let in an objection. The ob-
jection, then, is quite incompetent. The form of the in-
dictment, and the course which the case will take, is
exactly what occurred in that remarkable case of Benni-
son. True, no objection was taken to the relevancy;
but the Court did not hold, when the fact was said to be
proved — viz, that the female was an Episcopalian — that
if that state of facts were proved to the satisfaction of
the jury, the indictment was bad, as for a charge of
bigamy, which, on the argument now addressed to us, we
ought. It was said and proved, that marriage in Ireland
by a Presbyterian minister, between a Presbyterian Dis-
senter and an Episcopalian, was bad ; and it was con-
tended, that the proof made out that the female was an
Episcopalian. The Court did not direct the jury, that if
that fact was proved to their satisfaction, the minor of
the indictment turned out to be defective, so as not to
fit and cover the state of facts and law which had come
out. On the contrary, holding this to be a proper de-
fence on merits under such an indictment as the present,
I left that matter of fact, with the concurrence of my
AND CIRCUIT COURTS OF JUSTICIARY. 545
brethren, to the jury, with the direction, that they would No. 93.
Patrick
consider whether a mere entry, at the date of the mar- Quiuichan.
riage, that the woman was an Episcopalian, derived no High Court.
one knew how, was such proof as would he sufficient to 1862. '
void the marriage, — and if not, with the direction that Bigamy.
the marriage was proved. Here it may be matter of
fact, 1st, what is the law of Ireland ; and, 2d, whether
both were required to be, and were in point of fact, Ro-
man Catholics. That is for the trial. The objection
anticipates incompetently what may or may not be mat-
ter of fact for investigation at the trial. The indictment
entitles the prosecutor to prove his allegations, and he
takes his risk, that he has sufficient knowledge of the
facts which it may be shewn he must prove.
This opinion may appear to enter too fully on general
principles ; but I have thought it the more right to do
so, because the plausibility which the objection appeared
to have, dropped from it the instaiit I came to attend to
the fact, that it was an objection to a minor proposition.
LoED Ivory. — ^The objection is not a good one. Mar-
riages between Roman Catholics being lawful, it is enough
for the prosecutor to aver that the parties were lawfully
married. That is sufficient to constitute a good charge
of bigamy, whatever questions may arise on the evidence,
in support of that charge.
LoED Cowan. — We have here an assertion that the
marriage was a lawful marriage, that is, lawful by the
law of Ireland. Having made that statement, it was not
necessary for the prosecutor to go farther, and point out
how it was lawful. It is unnecessary to set forth the
particular statutes by which the marriage may, upon the
evidence, turn out to be unlawful. The objection truly
resolves itself into a matter of proof.
The objection was accordingly repelled.
546 CASES BEFORE THE HIGH COUBT
Present,
^gJ2 * The Lord Justicb-Clerk,
Lords Cockbbkn, Wood, Ivory, Colonsay, and Cowan,
Hkr Majesty's Advocate — Sol.-Gen. Deas — G. Young A. D.
Ellen Falconer and Margaret Falconer — Ogilvy.
EoBiNA M'Leod and Jane Briggs — Scott.
Indictment — ^Aggravations — Competency. — Held incompetent to
charge a previous conviction of theft, or that the pannels are habite
and repute thieves, as aggravations to a charge of robbery.
jjg g^ The pannels were charged with Robbery, aggravated
^d o°h^^« by previous convictions of theft, and by their being habite
High Court,
Jan. 26.
and repute thieves ; as also with Theft :
18fi2. Ijj s0 J.JIB ASj on the 6th day of December 1851, or on one or other
Robbery, of the days of that month, or of November immediately preceding, or
of January immediately following, in or near the house in or near
Leith Wynd, Edinburgh, then and now or lately occupied by you the
said Ellen Falconer and Margaret Falconer, or one or other of you,
you the said Ellen Falconer, Margaret Falconer, Eobina M'Leod, and
Jane Briggs, did, aU and each, or one or more of you, wickedly and
feloniously, attack and assault Peter Aitchison, lately innkeeper, and
now or lately residing with Michael "Waugh, a plasterer, in or near
Potterrow, in or near Edinburgh, and did jostle him, and knock him
about, and scratch his face, and you did, then and there, alland each,
or one or more of you, by force and violence, take from his person or
custody, and did rob him of two sovereigns in gold, £2:10:6 sterling,
or thereby, in silver, and twopence, or thereby, in copper money, and
a handkerchief, his property, or in his lawful possession ; Or other-
wise, time and place above libelled, you the said Ellen Falconer,
Margaret Falconer, Eobina M'Leod, and Jane Briggs, did, all and
each, or one or more of yoij, wickedly and feloniously, steal and
theftuously away take, from the person or custody of the said Peter
Aitchison, the money and handkerchief above libelled : And you the
said Ellen Falconer and Margaret Falconer are habite and repute
thieves, and have each of you been previously convicted of theft : And
you the said Robina M'Leod have been previously convicted of theft.
Scott, for M'Leod and Briggs, objected to the com-
AND CIRCUIT COUKTS OF JUSTICIAEY. 547
petency of libelling as an aggravation of the crime of p^i^ontr
robbery either previous conviction of theft, or that the and others.
parties were ' habite and repute' thieves. This was the HighCourt.
Jan. 26.
first time that any such attempt had been made, and it 18S2.
was opposed to every authority, and was equally opposed Robbei7.
to principle, which required that previous convictions
should only be used as aggravations in subsequent charges
of the same oiFence. Robbery and theft were distinct
crimes, importing different punishments.
With regard to the aggravation of habite and repute,
it had been decided that a charge of housebreaking
could not be aggravated by habite and repute ; cases of
BucMeu, 12th July 1822, Shaw's Justiciary Cases, p. 73 ;
Mary Beidley and Houston CatJiie, 27th Jan. 1823,
Shaw's Justiciary Cases, p. 93. In the last case it had
also been held, that previous conviction of theft could
not be libelled as an aggravation of reset of theft. The
decisions had always ruled that theft and robbery were
different crimes. It had been held, that an indictment
for robbery would not justify a conviction of theft where
the violence was disproved ; case of Wallace, Perth, 1821,
Hume, vol. i. p. 106, Note a.
The Lord Justice-Clerk enquired if there was any
case to the effect, that where theft only was charged,
and it was shewn to have been committed by violence,
no conviction could follow ?
Scott. — I have found no such case in the books.
Young, A.D. — The whole matter was not whether
robbery was identical with theft, but was a species of
theft. If so, then the previous conviction could be used.
Robbery, when defined, was ' theft by violence.' But
violence was nowhere stated to be inconsistent with
theft ; Hume, vol. i. p. 57 ; Mackenzie, p. 160 ; Burnett,
p. 145. There is violence in theft by housebreaking ;
and in that charge it is held competent to aggravate it
by charging a previous conviction of theft. In the case
of Wilson Walker and others, Glasgow Winter Circuit,
Jan. 14. 1850, in a case of stouthrief, it was held com-
548 CASES BEFORE THE HIGH COURT
No. 94. peteiit to charge previous conviction of theft ; the same
and Others, in the casB of Daniel Sillers, Inverary, Sept. 24. 1851.^ '
High Court. The Solicitor-Geneeal. — As to practice, that is com-
1862. ' paratively unimportant, as the prosecutor had, until lately.
Robbery. HO interest to try the point, robbery being a capital
offence; that made aggravations useless. Now, how-
ever, he has a clear interest in so charging, and is entitled
so to do if the chargfe be not inconsistent with principle.
In the case of Melville Anderson, High Court, Dec. 21.
1846, Arkley, p. 203, an opinion was intimated by the
Court, that, although articles may have been taken by
robbery, it is competent to charge the resetter of them
with reset of theft.
Lord Cockburn. — The conclusion to which I have
come is in favour of this objection. I am glad that it has
been taken, for it gives us an opportunity of settling the
law on a question which has been very much discussed.
If the question had arisen before any practice had oc-
curred upon the subject, I would have held that the pro-
1 The indictment in the case of James Wilson Walker and others,
charged the pannel with ' mohbing and rioting, especially when com -
' mitted for the purpose of perpetrating theft or stouthrief ; As also,
' Theft, especially when committed by a person who has been previ-
' ously convicted of theft ; As also, Stouthrief, especially when com-
' mitted hy a person who has been previo'usly convicted of theft ; As
' also, Robbery ; As also. Assault, especially when committed to the
' effusion of blood, fracture of bones, severe injury to the person, and
' danger of life, and more especially still, when committed with intent
' to rob : In so far as,' &c.
The Cdurt (Lord Cockburn) found the libel relevant.
The pannels having pleaded not guilty, were remitted to an assize.
The Jury found the prisoners guilty.
Daniel Sillers, was charged with ' Assault, especially when com-
' mitted on a man in his own house, to the effusion of blood, and immi-
' nent danger of life ; As also, Stouthrief, especially when committed
' hy means of housebreaking, and by a person who has been previously
' convicted of theft : In so far as,' &c. i
The Court (Lord Colonsay) found the libel relevant.
The pannel pleaded guilty of assault, without the aggravations of
housebreaking, or of previous conviction.
Sentence — Transportation for fourteen years. f **■ "]
AND CIRCUIT COURTS OF JUSTICIARY. 649
secutor was in the right. In principle, robbery is no- No. 94.
thing else than theft by violence, just the same as stouth- and others,
rief is theft by violence, though violence of a different High Court.
sort. .On principle, therefore, I would have thought that i8fi2. '
a previous conviction of theft was relevant as an aggra- Robbery.
vation of a charge of robbery.
I, would have been the more inclined to take this view,
that it is impossible not to feel the absurdity of our
existing practice. A man is convicted of theft. If he
commits another simple theft, that previous conviction
may be appealed to as an aggravation of his new offence.
But if, instead of a simple theft, he commits a much
worse, a more daring theft, a theft by violence to the
person, then he is not to suffer by the previous conviction.
But we do not sit here to make law ; we sit merely
for the purpose of interpreting it. I think the explana-
tion of the previous practice has been correctly given by
the Solicitor-General. Where robbery was capital, it
was useless to charge previous conviction of theft as an
aggravation. But that practice, is clear whatever may
have been its origin. What the prosecutor is here
endeavouring to do, is to introduce a very decided
novelty ; and on that ground alone I am for sustaining
the objection. I rest my opinion solely on the practice,
which is clear and uniform, though I am satisfied that
that practice is not reconcileable with principle. Per-
haps the evil might be avoided, and I would almost in-
vite the public prosecutor to avoid it, by giving in an in-
dictment in which facts amounting to robbery were
charged as theft, both in the major and minor of the in-
dictment, so as to raise at the trial the question, whether
proof of violence would entitle the pannel to an acquittal.
And if it be the law — a question on which I express no
opinion — that the facts of robbery will nof support a
charge of theft, then that is a matter for the interference
of Parliament.
I am for sustaining the objection.
Lord Wood. — I concur as to what has been said as
550 CASES BEFORE THE HIGH GOUET
No. 94. to robbery being nothing else in point of, principle than
and Others, theft charged bj ,violence. lam for sustaining the ob-
High Court, jection, in respect of the long and inveterate practice.
^m2^' Lord Ivoey. — I am of the same opinion. It is not
Robbery, necessarj to go deeper info the question than the mere
fact of clear and uniform practice. But if the question
had been open, I am not prepared to go so far as Lords
Cockburn and Wood. I think that from the earliest
times of our criminal jurisprudence, theft and robbery
have been regarded as different kinds of crime, each
having its appropriate nomen juris. They were so dis-
tinct, that a tribunal competent to try the one, was not
competent to try the other. The change of practice, to
which the Solicitor-General has referred, may be a good
ground for going to the legislature. The change intro-
duced by practice in the punishment of robbery, does
not change the legal character of the offence.
Lord Colonsay. — I concur in the opinions which
have been delivered. It is not necessary to go into the
question, whether theft and robbery are not legally dis-
tinguishable in point of principle. It is enough that
there is a uniform and inveterate practice dealing with
theft and robbery as distinct offences. Suppose theft
were charged in the major proposition of the indictment,
and the circumstances set fortli in the minor amounted
to robbery; or suppose, under an indictment charging
theft, a robbery should be proved, — I do not know what
would be done in such cases, and I express no opinion
upon them.
As to the question of aggravations generally, our law
rests entirely on practice. Previous convictions are re-
levantly charged as an aggravation when an offence of
the same nature is again charged. In that case, and in
no other, the criminal knows that the previous conviction
will rise up against him.
As to the aggravation of habit and repute, to which
altusion has been made in the course of the argument,
our practice is still more limited. That is a very peculiar
AND CIRCUIT COURTS OF JUSTICIAEY. 551
species of aggravation, depending on very peculiar prin- No. 94.
ciples ; and I should be sorry to extend it farther. and others.
LoED Cowan. — I quite concur in the views expressed High Court,
by Lords Cockburn and Colonsay. I reserve my opinion i8S2. "
on the question, whether it would be relevant to charge Robbery,
robbery as theft by violence, or whether a charge of theft
could be followed by a conviction if the facts proved
shewed that it had been committed with violence.
Lord Justice-Clerk. — I was very anxious to have
this question tried. I cannot consider this as a mere
question of principle. It is a question as to the usage
and practice of this Court. In principle, the previous
character of the pannel is not an aggravation ; neither
, is a previous conviction, unless it be a previous conviction
of exactly the same offence. The competency of going
out of the actual facts charged, depends wholly on the
practice and usage. We have always held that this par-
ticular crime of theft, which frequently is adopted as a
trade or means of livelihood, is different from robbery.
I therefore concur with your Lordships in sustaining the
objection.
The Court ' sustained the objecti(m to the competency
' of the aggravations libelled, so far as they regarded the
' charge of Robbery.'
The pannels were convicted of the theft as libelled.
552 CASES BEFORE THE HIGH COURT
Present,
The Lord Justice-Clerk,
Feb. 2.
1852. Lords Cockburn and Wood.
Her Majesty's Advocate — Cleghorn A.D.
AGAINST
Elizabeth M'Walter or Murray — J. Shaw.
Indictment — Relevancy — Aggravation— Swindling. — An indict-
ment charged swindling, as also falsehood, fraud, and wilful imposi-
tion, aggravated by a previous conviction pf swindling, and falsehood,
fraud, and wilful imposition. Objection repelled, that in the former
indietmeiit under which the pannel had been convicted, two separate
crimes were charged in the major proposition, viz. swindling, and
falsehood, fraud, and wilful imposition ; while there was only one
species facti in the minor to which the pannel had pleaded guilty,
aud which could constitute only one of the crimes charged; that it
was impossible to say to which crime the confession applied, while
the pannel could not be held guilty of both j and that therefore it did
not clearly appear that the conviction was for the same crime as that
now charged.
Observed, That ' swindling' is not a proper nomen juris, and that the
legal term is ' falsehood, fraud, and wilful imposition.'
No. 95. Elizabeth M'Walter or Murray was indicted and
Elizabeth
M'Walter aCCUSed
or Murray.
^'S^Court. That albeit by the laws of this and of every other well-governed
1852.' realm, swindling, as also falsehood, fraud, and wilful imposition, espe-
Swindlins "'^^y when committed by a person who has been previously convicted
and false- of swindling, and falsehood, frand, and wilful imposition, are crimes of
and w™m' ^ ^®™0"s nature, and severely punishable. Yet true it is, &c.
imposition.
Then followed a narrative of seven separate charges
against the pannel. Among the productions was an
extract or certified copy of a previous conviction ob-
tained against the pannel, for ' swindling, and falsehood,
' fraud, and wilful imposition.'
J. Shaw, for the pannel, objected to the relevancy of
the aggravation charged, on the ground of ambiguity.
AND CIRCUIT COURTS OF JUSTICIARY. 553
On turninff to the former indictment under which the No. ss.
, . n . T, , , . Elizabeth
pannel was convicted, it would be seen that the major M'Waiter
proposition set forth two separate and distinct crimes, °!_L^^^
viz. swindling, and falsehood, fraud, and wilful imposi- Feb. 2.
tion ; while in the minor, only one species facti was nar- - — pi-
rated, to which the pannel had pleaded guilty. The con- and faise-
viction was stated to be for both crimes ; but that was and'wnfui'
impossible, as the species facti set forth could amount '"P"^*^™-
only to one of them ; and if the conviction was only of
one crime, it could not be known to which of the two
crimes it referred. It did not therefore appear whether
the previous conviction applied to the present charge.
The Lord Justice-Cleek, — She may have been found
guilty of both charges.
J. Shaw. — She was found guilty in terms of her own
confession.
Lord Wood. — She must then be held to have pleaded
guilty to both crimes. Both are here charged ; and if
both are proved, then the aggravation is applicable to
both.
The Lord Justice-Clerk. — We must assume the for-
mer confession to have been correct, and that the pannel
was duly convicted of both crimes. It is true that she
is not to be convicted of two crimes on the same species
facti ; but stiU she may be guilty of two crimes, under
such an indictment as that produced, if indeed two dis-
tinct crimes are really charged. But, in truth, I do not
very well know the meaning of the term ' swindling.'
What is it but falsehood, fraud, and wilful imposition ?
No doubt the term was used in the case of Hall in 1788,
but it was not used for a long time thereafter, and I see
no reason why it should be introduced now, or in future.
I think it would be better not to employ it. It is not a
proper nomen juris ; but is just the popular term for what
is known in the law as falsehood, fraud, and wilful impo-
sition.
The objection was therefore repelled.
554 CASES BEFORE THE HIGH COURT
Feb. 20. Preapnt
1852. rresent,
The Lord Justice-Clerk,
Lords Wood and Colonsay.
Daniel Blyth, and Agnes Tait or Blyth, Suspenders— Dotw of
Faculty Anderson — Pattison.
AGAINST
Jambs M'Bain, Respondent — Sol.-Gen. Deas — Logan.
Statute 13th and 14th Vict. cap. 33: — Process — Defence.— In a
suspension of a summary trial for theft, under the General Police
Act, 13th and 14th Vict. c. 33, the parties accused alleged that they
were brought to trial without any summons being served upon them ;
that they were not made aware of their right, in virtue of certain
regulations framed by authority of the statute, to apply for time to
summon witnesses,' and that no suflScient explanation was given to
them to enable them to put their application for time into correct
form. The Court, on advising a proof of these allegations, suspended
the sentence, and ordered repayment of a pecuniary penalty which
had been imposed on one of the parties.
B^fts u ^^i^ was a suspension and liberation arising out of the
^'^'*™- following circumstances : —
F^b. 20^' The suspenders were, on the 13th day of December
^^^^' 1851, apprehended at the instance of the respondent.
Suspension, ^y^^ ^^ Superintendent of Police and Procurator-fiscal
for the burgh of Galashiels, on a charge of theft, or reset
of theft.
Of the latter crime, the suspenders were summarily
convicted, before William Rutherford, one of the magis-
trates of the burgh of Galashiels, and sentenced as fol-
lows : — The female complainer, Agnes Tait or Blyth, to
be incarcerated in the prison of Selkirk for twenty days
from the date of conviction ; and Daniel Blyth, to be
fined and amerciated in the sum of £10 sterling, with
the alternative of imprisonment, until the fine should be
paid, but not exceeding thirty days.
It appeared that, under the authority of the General
Police act, 13th and 14th Vict. c. 33, certain rules and
AND CIRCUIT COURTS OP JUSTICIARY. 555
regulations, and forms of procedure, for the police court No. 96.
of Galashiels, had been framed and established by the M^Ba^nt
sheriff of the county of Selkirk, and by the magistrates High Court.
of the burgh. These regulations had, in terms of the ^issf.""
statute, received the approval of the Lord Justice-Gene- suspension.
ral and of the Lord Justice-Clerk.
The 6th and 7th of these rules and regulations, pro-
vide, inter alia, — ' That, when any party applies for time
' to summon witnesses, the clerk shall make a note of
' such application, if it is refused, and the magistrate
' may, if he thinks fit, call upon the party to state the
' nature of the facts which he means to prove ; and if he
'shall refuse, or is unable to do so, then the application
' shall not be marked. And, when any party offers
' proof at the time, the magistrate may require him or
' her to state the nature of the facts he or she proposes
' to prove ; and if the proof is refused, the offer of proof,
' and the nature of the proof so offered, shall be marked
' by the clerk, and, that the magistrate may, at the de-
' sire of either party, delay procedure till a future court
' day, in which case, the defender or defenders shall be
' furnished with a copy of the complaint.'
It was alleged by the suspenders, that these regula-
tions had been disregarded, in so far as they had been,
without any previous service of the complaint, summarily
brought before the acting magistrate, where the charge
was at once proceeded with, and evidence led for the
prosecution, terminating in the conviction which was now
sought to be set aside. It was farther stated, that they
had applied, in terms of the regulations, for time to
summon witnesses, and to prepare their defence ; and
that this application had been refused, although there
was no marking to that effect by the clerk.
They therefore argued, that the procedure in the Police
Court being altogether illegal and irregular, ought to be
suspended.
The Court was of opinion that some enquiry must be
made into the procedure before the Police Court, and
656 CASES BEFORE THE HIGH COURT
No. 96.] the alleged refusal of the magistrate to allow time for
M'Bain.' the defence. The following interlocutor was therefore
HighCourt. pronouncefl : —
1862. * ' Edinburgh, 12th January 1852.- — The Lord Justice-
Suspension. ' Clerk arid Lords Commissioners of Justiciary, having
' heard counsel for both parties, in respect the suspender
' avers that he did distinctly apply for time to employ
' an agent, or for time to lead evidence on his behalf,
' which application, although not minuted by the clerk,
' was refused by the magistrate ; before answer, allow
' the suspender a proof of said averment, and to the re-
' spondent a conjunct probation; and remit to the Sheriff-
' depute of the county of Selkirk to take such proof,
' and direct this interlocutor to be forthwith laid before
' him ; and recommend to the Sheriff to take the said
' proof quam primum, and to bring the same to a close,
' without adjournment, unless such shall be necessary ;
• and grant diligence at the instance of both parties for
' summoning witnesses and havers.'
Feb. 20.
18S2.
Of this date, the proof ordered by the preceding inter-
locutor having been taken and reported to the Court —
The Lord Justice-Clerk said, that the opinion of the
Court would be best expressed by the judgment now to
be pronounced.
The Court pronounced this interlocutor : —
' The Lord Justice-Clerk and Commissioners of Justi-
' ciary having resumed consideration of this case, con-
' sidered the proof, and heard counsel for both parties,
' Find, That the evidence does not actually amount to
' proof of the specific allegation, in point of fact, con-
' tained in the interlocutor of 12th January ; but find,
' That it appears that the suspender had not been aware
' that the case could be proceeded with without a sum-
' mens, and warning thereby to be prepared, and that he
' did express some surprise or complaint that the matter
' could be then disposed of, and that the right to apply
' for time was not intimated to the suspender, to whom
AND CIRCUIT COURTS OF JUSTICIARY. 557
' the new regulations were unknown, and hence, that he No. 96.
' was not enabled to put his application into any correct M^BaL?
' form ; and, under the whole circumstances, as there High Court.
' appears to have been some want of explanation, al- ^fs'52!'
' though unintentional and accidental on the part of the Suspension.
' magistrate, in not making the purport of the new regu-
' lations more fully known : Therefore, pass the bill ;
• Suspend the sentence complained of simpliciter, and
' ordain the fine awarded against and paid by the sus-
' pender, to be repaid to him : Find no expenses due,
' and decern.'
A similar interlocutor was pronounced in the case of
the female suspender, except as to the fine, she having
been imprisoned, but not fined.
James Somerviue, S.S.C. — Adam Patehson, W.S. — Agents.
Present,
March 16.
The Lokd Justice-Clerk. 1852.
Loi^DS CoCKBURN, WoOD, CoLONSAY, AND CoWAN.
James Middlemiss junior. Suspender — Logan,
AGAINST
The Right Hon. Lord and Lady Willoughby D'Eresby, Respon-
dents— Neaves — J. M. Bell.
Suspension — Statute 2d and 3d Will. IV. cap. 68 — Misnomer —
Identity — Nonage. — A party who was alleged to have been de-
tected in the act of snaring hares, instead of his real name, which
was Alexander, gave the name of Ja/mes, being that of a younger
brother, a child of two years of age. 'The complaint was directed
against the said party by the name' oiJamet, but was served on Alex-
ander. No appearance was made for Alexander ; but it was ex-
plained at the trial that the name of James applied only to the child.
Sentence havitig been pronounced, which bore, in gremio, to be
against James — Suspension at the instance of James (with concur-
rence of his father) sustained, and sentence set aside.
No. 97.
This was a suspension of a sentence of the Justices Middiemiss
of the county of Perth, proceeding on the act 2d and 3d —, — ^^^"
Will. IV. c. 68, § 1, purporting to be against the suspen- March le.'
der James Middlemiss junior, under the following cir '■ —
Suspension.
cumstances : —
558 CASES BEFORE THE HIGH COURT
No. 97. It was alleged that a brother of the suspender, aged
Middlemiss . , , ■, ■, , , •■ , , , <• ,i
w.d'Eresby. eight years, had been detected by the keepers or the
High Court, respondents in the act of snaring hares.
March 16. f^ *
1852. When apprehended and asked his name, he gave the
Suspension, name James Middlemiss junior, his true name being
Alexander Middlemiss, and James being the name of a
younger brother, about two year^ old.
In virtue, as alleged, of this information, a petition
and complaint was presented against 'James Middlemiss
• junior,' which was duly served upon Alexander, the party
sought to be convicted.
At the trial no appearance was made for Alexander,
but appearance was made for the child James, and the
actual state of the* fact as to his name was explained.
There was another brother, of the age of six, at the time
of his apprehension, along with Alexander, against whom
also proceedings were instituted ; but the sentence pro-
nounced was not sought to be enforced so far as con-
cerned him.
The following sentence was pronounced, viz. : — ' That
' the two boys respectively designed as James Middle-
' miss junior, and Thomas Middlemiss, should be fined
' 20s. each, or in default of payment, to thirty days' im-
' prisonment each.'
James Middlemiss junior, with concurrence of his fa-
ther as his administrator-in-law, having brought a sus-
pension :
Logan, for the Suspender, contended, that the suspender,
James Middlemiss junior, had an undoubted right to have
the sentence against him suspended, inasmuch as that
sentence was directed personally against him, and was
of such a nature as to give him right to have it set
aside, as being a sentence incompetent and personal.
Such a case as this was perfectly distinct from cases in
which a pannel had given a false name, and was after-
wards held bound by it. The suspender had never given
a false name, and was entitled to be freed from all hazard
of a sentence of fine or imprisonment being ever used
AND CIRCUIT COURTS OF JUSTICIARY. 559
against him, which bore, in gremio, to apply expressly to No. 97.
the suspender and no one else ; and whatever mistake in ».d'EreBby.
names had been previously made, the fact on this subject High Court,
was fully cleared up befpre sentence was pronounced.^ i8S2.
■■ • ■ Suspension.
^ EVIDENCE FOB THE COMPLAIKEES (iN THE INFERIOR COURt).
James M'Laren, Game-watcher on the Perth Estate. — Depones,
That on Sunday the 25th day of January 1852, I found on the Mu-
thill acres, the property of the oomplainers, the defender Thomas
Middlemiss ; there were two boys. I asked the other defender's
name, and he called himself James Middlemiss, and a brother of the
other defender Thomas Middlemiss : That the defender James Middle-
miss will be about twelve years of age. I happened to go to the Mu-
thill acres, which are tenanted by John M'Eobbie, mason, and John
M'Naughton, shoemaker, both residing in Muthill, in consequence of
having received information that there were snares set there :, That I
do not see in the Court the party who called himself James Middle-
miss, on the occasion above referred to : That the child in the keeping
of the defender James Middlemiss senior, is not the person who called
himself James Middlemiss, on the occasion referred to : That I be-
lieved the name which he gave me to be his real name.
John Ferguson, Gamekeeper, Drummond Castle. — Depones alike
to, and concurs with the preceding deponent ill all points : That James
M'Laren, the preceding witness, was along with me on the occasion
deponed to, and at the time when I asked the defenders' names and
was informed what these names were.
Neil Sime, Sheriff-officer and Constable in Crieff. — On being
shewn the complaint, depones, — ^That he served the defenders with
copies thereof : That he only identifies Thomas Middlemiss, the
defender at the bar, as being the only defender present in Court :
That the defender James Middlemiss junior, is taller, and may be
about t.wo years older than the defender Thomas Middlemiss : That
he would know the defender James Middlemiss, if he saw him again :
That he gave the copy to the said James Middlemiss junior, into his
own hand : That the child now in Court, and in the charge of a female
present, is not the person to whom I gave the copy as aforesaid.
Interrogated for the Defenders. — Depones, That the names of the
defenders were in the citation. That the defenders were both sitting
at the fireside of James Middlemiss senior's house, when he served the
complaint : That he asked the mother, who is now present, the names
of the defenders, when she stated that the one, pointing to him, was
Thomas, and he asked if the other was James, to which she answered
that that was not his name : That he left the copy for James Middle-
miss junior in the hands of the eldest boy. There was a girl present,
but no more boys. The deponent asked the mother if the eldest boy
was the oldest she had, and she answered that he was.
2o
560 CASES BEFORE THE HIGH COURT
No. 97. J. M. Bell, for the Respondents, argued, that as the
V. d'Eresby. truc party caught snaring hares had been duly served with
HighCourt. a summons, and was of an age, viz., eight years, to be an-
March 16.
1852. \ ; [ '■
I -. — Re-interrogated for the Complainers. — Depones, That before serv-
Suspension. , if J r .,,,,,/.,
mg the copies ou the defenders!, he was informed that the defender
James Middlemiss junior had given a wrong name, and was instructed
to serve the copy addressed to that individual on an elder boy than
the other defender Thomas.
EVIDENCE FOB THE DEFENDEKS.
Ann Dewar or Morrison, wife of John Morrison, saddler in
Crieff. — Depones, That the child in the keeping of its mother^ and
present in Court, is called James Middlemiss, and is James Middle-
miss' only son of that name, and is about two years of age : That the
defender, James Middlemiss senior, has three sons, the name of the
eldest is Alexander, the second Thomas, and the youngest' the said
James Middlemiss junior : That she cannot state the age of Thomas
exactly, but believes him to be about seven : That there were several
that died betweeji the eldest and Thomas, and cannot say what the
eldest boy's age is.
Crieff", 10th Januari/ 1852. — ^The Justice having considered the
proof led on the preliminary defence urged by the defenders,^ and heard
parties' procurators thereon, repells the preliminary defence stated, and
decerns. (Signed) Wm. L. CoLciUHOTrN, J.P.
The complainers proceeded to examine witnesses in causa, and re-
called—
John Ferguson, who depones. That I went out on Sunday, the
25th day of January last, to protect the game on the Perth estate from
poachers, in consequence of having learned, two or three days before,
. that snares had been set on the grounds libelled on : That about half-
past eleven o'clock of the forenoon of the said Suuday, and while the
bells were ringing for church, I arrived at the Muthill acres on the
Perth estate, the property of the complainers, tenanted by John
M'Kobbie, mason, and John M'Naughton, shoemaker, both in Muthill :
That, along with James M'Laren, game-watcher, I saw two boys on
the said acres on the said occasion, going along the hedge boundiiig
the acres on the east, when they appeared to be examining the hedge
for snares : That, in advancing to where the boys were, I and James
M'Laren kept the opposite side of the hedge where the boys were, and
observed three or four brass wire snares in the hedge, in one of which
was a hare, which was dead : That the boys went along the west side
1 ' That, in respect that James Middlemiss junior, who is now present, is an in-
' fant of not more than two years of age, this Court cannot entertain this com-
• plaint, more especially, as it is admitted that the child was not present on the
' occasion libelled ; and therefore, that the complaint against both defenders ought
' to be dismissed, reserving a new complaint.'
AND CIRCUIT COURTS OP JUSTICIARY. 561
swerable personally for his own delict ; and, as he had No. ,97.
J . ,, 1 . , , Middlemiss
given an assumed name; the respondents, who were there- ^.d'Eresby.
by deceived, were warranted in presenting a complaint. High Court.
and taking sentence against said party under such as- ^^is'sV^"
sumed name. He was personally barred from complain- Suspension,
ing against this, and, accordingly, he had presented ho
suspension. But, as the complaint had been personally
served on him alone, and had never been used or intended
to be used against any other party, it was jus tertii to any
other party, like the present suspender, to raise a suspen-
sion of the sentence.
Neaves, on the same side, maintained the same argu-
ment, urging that identity of person, with correctness of
name, was often not merely inconvenient, but impossible
4,0 be established in evidence.
The Lord Justice-Cleuk. — There is great force in
what you say ; but how dp you prove the elder brother to
have been in the field at all ?
Neaves. — ^There was no question in this suspension in
of the hedge above deponed to, and, in doing so, I observed them exa-
mining the hedge for snares : That when I came up to the boys I
asked them what they were doing, when the eldest replied that they
had seen some person setting snares the night before, and that they had
goiie there to look at them : That, before I came up to the boys, James
M'Laren had a brass snare in his hands, which he stated he had taken
from the eldest boy. I asked this boy where he got the snare, and he
answered, ' in a slap of the hedge up there :* That I examined the
slap referred to, and traced that a hare had been caught there some
days previously. I asked the names of the boys, and the eldest boy
^tat^d his name to be James Middlemiss, and the youngest boy stated
his name to be Thomas Middlemiss : That the snares that the boys
had passed, as he observed by their fresh foot-marks, were all properly
se^. I had no doubt that the names given by the boys respectively
were their correct names.
James M'Laken, recalled. — Depones alike to, and concurs with the
preceding deponent in all particulars, with this addition : — That on
reaching the boys, which he did before the preceding witness came
forward, he had asked the boys what they were doing there, when the
youngest of the two stated that he was doing nothing : That I then
asked the same question at the eldest boy, as also whether he had any
snares in his possession, when he answered that he had no snares:
That I searched the eldest boy, and found a brass wire snare rolled up
in his pocket.
562 CASES BEFORE THE HIGH COURT
No. 97. respect of the elder brother, against whom the respon-
v.d'Eresby. dents had a good answer if he should raise any suspen-
High Court, sion for himself.
Issg. ' Lord Wood. — I observe you write letters to Alex-
Suspension. auder (as you contend), after you knew the true names
of the parties. , Why did you not write to the father in-
stead of writing to James Middleiniss junior ?
Neaves. — If I once lay a competent complaint against
a party, whose identity is clear, and whose name is only
mistaken through his own falsehood, can any one say
that sentence following thereon is inept ? And can it
further be said, that the father of the child whose name
was wrongfully given, is entitled to suspend, because his
elder child assumed his younger brother's name ?
The LoED Justice-Clerk.; — In this case I am of opi-
nion the suspension must be sustained. The mere pro-
nouncing of a sentence against any one is a serious thing,
and entitles the party to a suspension if wrongful. Here
it is directed against James Middlemiss junior, and that
after the parties knew of the boy Alexander's assumption
of a wrong designation. When, on proof, they found
they had made a mistake, they should not have moved
for sentence. Unless they had been prepared to shew
(what in England they call ' identity and diversity'), viz.,
that the boy Alexander was truly there, and gave his
name James Middlemiss, they should have desisted from
further proceedings as against James Middlemiss junior.
Had the suspension been at the instance of Alexander,
who falsified his name, I say nothing ; but in the present
case, I think the suspension ought to be sustained.
The other Judges concurred.
Logan moved for expenses.
The Lord Justice-Clerk. — I think in all cases where
a sentence has been moved for against a child nominatim,
known to be two years old only, his father is entitled to
come here and ask us to suspend such sentence, with
expenses.
The Court suspended the sentence simpUciter, with
expenses.
AND CIRCUIT COURTS OF JUSTICIARY. 563
SOUTH CIRCUIT.
DUMFRIES.
Judges — Lords Colonsay and Cowan. ^ ;, ,g
1852. "
R. Threshie, Appellant— p. Fraser.
AGAINST
John Safpley, Respondent — J. Shaw.
Jurisdiction — Statute 1st and 2d Will. IV. c. 43 — Toll — Ex-
emption.— An appeal to the Circuit Court of Justiciary against a
decision of the Sheriff, sustaining a claim of exemption from toll,
dismissed as incompetent.
Observed — That the right of appeal from the Sheriff-substitute to the
Sheriff is a right available to parties in all cases where such right is
not clearly excluded by statute.
This was an appeal from a decision of the Sheriff of no. 98.
Dumfriesshire, arising out of the following circum- ^gaffley.*'
stances : Dumfries.
The respondent, who was a farmer in the neighbour- ^Ylll^'
hood of Dumfries, had, it appeared, been in the habit of ■
driving his cattle to Dumfries market, by a parish labour
road, which communicated with the turnpike leading to
Dumfries, and thereafter driving them off the turnpike,
on to another statute labour road which communicated
with Dumfries. There was a side-bar on the road, which
first communicated with the turnpike, and on the occa-
sion out of which the present dispute arose, no toll was
demanded for the passage of the respondent's cattle.
Sometime afterwards, the appellant presented a petition
and complaint to the Sheriff, praying to have the respon-
dent found liable in the statutory penalty for evasion of
toll, and alleging that the cattle had traversed 100 yards
on the turnpike-road, before they were again driven on
to the statute labour road."^ The respondent lodged
1 By the statute Jst and 2d Will. IV. c. 43, § 37, it is provided,
inter alia, ' That no toll shall be exigible for any horses, cattle, or car-
1852.
Appeal.
564 CASES BEFORE THE HIGH COURT
No. 98. answers, wherein he averred, that the distance travelled
Threshie "• , ,
Saffley. by the cattle was not so much as 1 00 yards ; and, 2d,
Dumfries, that, for time immemorial parties had been in the habit
April 19. , ^ .
18S2. of passmg along these roads without paying toll. The
Appeal. Sheriff dismissed the latter defence as irrelevant, and
allowed the respondent a proof of his allegations as to
distance, and to the appellant a (^onjunct proof. There-
after a great variety of witnesses, chiefly surveyors, were
examined, one-half of whom made the distance under
100 yards, and the other half made it 101 yards.
The Sheriff-substitute in these circumstances appointed
the parties to meet him on the spot, in order that the
distance might be judicially ascertained ; and thereafter
pronounced the following interlocutor, which was adhered
to by the Sheriff on appeal.
' Dumfries, itk August 1851. — Having again considered these pro-
' ceedings, after seeing the road in question measured, finds, That it is
' possible for cattle, horses, carriages, and others, so to traverse the
' space betwixt the Clouden Bar and the Woodlands Boad, as. not to
' travel so much as one hundred yards on the turnpike road ; and that
' it is also possible for cattle and others, as aforesaid, so to traverse
' said space, as to travel more than one hundred yards on the said
' turnpike : Finds, That .there is no proof that the cattle of the defen-
' der traversed said space in the manner last mentioned, and that they
' did not, accordingly, travel so much as one hundred yards on said
' turnpike : In these circumstances, finds, That the complainer has
' failed to prove his complaint ; and that the defender has failed to
' prove his defence : dismisses the complaint ; finds no expenses due,
' and decerns.' (Signed) ' John P. Trotter.'
Against this judgment the present appeal was brought.
J. Shaw, for the respondent, objected to the competency
of the appeal, in so far as it sought to review the decision
riages, which shall not travel altogether above one hundred yards on
any road, in whole or in part, before or after passing any bar at
which toll-duty is leviable for passing the same : Provided always,
that if any person shall claim or take the benefit of any exemption,
not being entitled thereto, every such person shall forfeit and pay a
sum not exceeding four pounds ; and in all cases the proof of exemp-
tion shall lie upon the person claiming the same.'
AND CIRCUIT COU&TS OP JUSTICIARY. 665
of the Sheriflf, which, by the section of the statute, was No. 88.
made final. The words of the statute'^ drew a marked Saffley. ,'
distinction between a conviction taking place before the Dumfries.
* April 1 9
Sheriff; iand one taking place before the Justices. In the i852.
latter case, an appeal was given to a Quarter-Sessions, Appeal.
which would there be final, and a decision of the Sheriff
was equally so. It might be doubted if it were competent
to appeal under the statute from the Sheriff-substitute to
the Sheriff; and if not, the present appeal was not brought
in time.
P. Feaser for the appellant. — The Sheriff had not pro-
nounced any judgment in this case, and the present ap-
peal only sought a remit to him in order that he might
determine whether or not the distance was more or less
than 100 yards. By the statute, the whole burden of
proof was cast ou the party seeking the exemption. The
Court had full power to do this, ^.nd it was plainly neces-
sary for the expiscation of the case. The right to appeal
to the Sheriff from the decision of the substitute was not
taken away by the statute ; and the present appeal was
* Section 114 enacts — ' That any person ■who shall think himself or
' herself aggrieved hy any judgment or proceedings of any Justice or
' Justices of the Peace, in the execution of this act, for which no par-
' ticnlar 'relief has been hereby provided, may, within three months
' after such judgment or proceedings, but not afterwards, appeal to the
' Justices of the Peace at the Quarter Sessions, the appellant giving
' fifteen days' notice of such appeal to the defender or defenders, and
' to the clerlf of the said Justice, and the clerk of the Justices of the
' Peace, and finding caution to pay the expenses of such appeal ; and
' where, by this act, the adjudging of any penalty, forfeiture, fine, or
' the determining the amount of any payment, damages, or expenses,
' or any other matter, is committed to any Justice, or Justices of the
' Peace, or to the Sheriff, or the Justices of the Peace assembled in
' their Quarter Sessions, originally or by appeal, all judgments, deter- ■
' minations, and proceedings of such Justice or Justices, not appealed
' from as aforesaid, and of such Sheriff or Quarter Sessions, shall be
' final and conclusive, and shall not be subject to review by advoca-
' tion, or suspension, or by reduction, or by any process of law or
' court whatsoever, any law or usage to the contrary notwithstanding.'
566 CASES BEFOftK THE HIGH CXJURT
No. 98. taken in due time after affirmance by the Sheriff-princi-
Saffley. pal of the decision of his Substitute. '> ' ■
Dumfries. LoRD CowAN. — I am of Opinion that this objection is
18S2. ' insuperable. It plainly appears from the deliverance
Appeal, appealed from, that there is an adjudication by the SheriiF,
that the respondent is not liable to the appellant in the
penalties sought to be enfoi-ced against him. This being
so, it is immaterial on what ground the Sheriff arrived
at his conclusion, as the statute declares in express terms
that his judgment shall not be subject to review. We
must therefore hold this appeal incompetent. As to
the second point, the importance of the subject leads me
to remark, that, in my judgment, the right of appeal from
the Sheriff-substitute to the Sheriff-depute is a common-
law right, available to parties in all cases, whether the
process be under a statute or at common law, unless
either by express terms, or by necessary implication, such
appeal is taken away by statutory enactment.
LoED CoLONSAY. — ^^I am of the same opinion. In what-
ever way we regard the interlocutor of the Sheriff, it
amounts to a judgment of absolvitor in favour of the re-
spondent, and also determines the question of expenses.
In so far, therefore, as the^, Sheriff-court was concerned,
the process was at an end ; and the act having declared
that no judgment of the Sheriff shall be reviewable, it
plainly follows that we cannot enter into the sufficiency
or insufficiency of the reasons on which that judgment
proceeds.
The appeal was dismissed with expenses.
B. Thresrie — Cub. Harkness Agents.
AND CIRCUIT COURTS OF JUSTICIARY. 567
NORTH CIRCUIT.
Spring, 1852.
PERTH.
Judqes — Lords Cockbukn and Ivory. April 29.
' 1862.
Her Majesty's Advocate — Mure A.D.
AGAINST
Isabella Blyth — Millar — Macphsrson.
Murder — Insanity. — Circumstances in which the Court interposed
in the course of a trial, and intimated an opinion that a defence of
insanity had heen established by the evidence ; and the Jury, agree-
ing in this opinion, returned a verdict to that effect.
Isabella Blyth, residing at Balbirnie Burns, in the no. 99.
parish of Markinch, and shire of Fife, was charged with Bjyth*
the crime of Murder : Perth.
April 29,
In so far as, on the 25th day of November 1851, or on one or L_
other of fhe days of that month, or of October immediately preceding, Murder,
or of December immediately following, within or near the dwelling-
house situated at or near Balbirnie Burns, in the parish of Markinch,
and shire of Fife, tben and now or lately before occupied by the now
deceased Grace or Grizzel or Girzy Duncan or Blyth, your mother,
with whom you then and there resided, you the said Isabella Blyth,
did, wickedly, maliciously, and feloniously attack and assault the said
Grace or Grizzel or Girzy Duncan or Blyth, and did, with a pair of
tongs, or other instrument or instruments, to the prosecutor unknown,
strike the said Grace or Grizzel or Girzy Duncan or Blyth several,
or one or more, severe blows on her head, and neck and shoulder, or
on one or more of them, and other parts of her person, and did thereby
fell or knock her down upon the floor of the said house, by all which,
or part thereof, or by other violence to the, prosecutor unknown, then
and there inflicted on her, by yon, the said Grace or Grizzel or Girzy
Duncan or Blyth, was mortally injured in her head and bl:ain, or one
or other of them, and, in consequence thereof, lingered till on or about
the 4th day of December 1851, when she died ; and was thus murdered
by you the said Isabella Blyth.
The following special defences were put in for the
prisoner :
' The pannel's plea is, Not Guilty ; and she says, that
568
CASES BEFORK THE HIGH COURT
No. 99.
Isabella
Blyth.
Peith.
April 29.
1852.
at the time the crime charged against her is said to have
been committed, she was insane.'
EVIDENCE FOB THE PROSECUTION.
George Grant, Esq., Sheriff-substitute of Fifeshire, and Alex-
Murder. ANDER BiiACK, Joint Procurator-fiscal, Cupar, proved — ^That the
prisoner's declarations, emitted on the 29th of November, on her ap-
prehension, had been freely and voluntarily emitted by her, when in
her sound and sober senses, and after the*usual cautions given to pii-
soners in such circumstances.
It appeared that, before the prisoner had been examined, rumours had
reached the officials to the eflFect that she was insane. Dr Grace, sur-
geon, Cupar, had been sent to see her, and had granted a certificate that
there was nothing in her state to prevent her being judicially examined.
A deposition, emitted by the deceased^ was then proved to have been
taken down when she was fully aware of her dangerous state, and after
she had been sworn, and cautioned to give her evidence as in the pro-
spect of death.
Isabella Macmain or Wilson. — I knew the old woman ; the pri-
soner is her daughter ; they lived together during the last year or two.
A little boy of mine, of six years of age, on the 25th November, told
me something which led me to go to her house ; a few minutes after
nine. I found the children at the door ; I put them aside, and went in.
There is one room with beds, and a place behind, which gives it the
appearance of two rooms. I heard moaning and groaning from the old
woman, as if from the inner apartment. There was a knocking going
on at the same time ; I thought it proceeded from breaking of coal, or
something of that' kind ; like an iron instrument knocking on some-
thing hard. I did not go to the inner room, but called out ' what's the
matter ?' I got no answer. I knew the voice of the groans to be the
old woman's. I repeated the question ; still, no answer. I then went
and called Mrs Dalrymple ; her house is close by. When I went back
to her I still heard groans. There was no one in the outer room. I
said to Mrs Dalrymple that surely there must be something wrong ; I
was alarmed at the continuance. The daughter came from the inner
apartment, carrying a pair of tongs. I spoke to her, and asked what
was the matter with her mother ; she said, ' nothing.' I then looked
into the bed, thinking the old woman was there, and the groaning ; I
found she was not there. Mrs Dalrymple asked where she was ; the
prisoner said, ' ben the house.' Mrs Dalrymple then told the prisoner
to go and see what was the matter. The prisoner said, ' gang yersell.'
The old woman then called out, ' Oh, come to me, for I'm killed.' I
went in, and saw her stretched on the floor. I asked if she had fallen.
She said, ' No j it was Bell that struck her with the tongs.' Bell was
in the outer apartment at this time. I called to Mrs Dalrymple to go
for assistance. She went, having first followed into the inner apart-
AND CIRCUIT COURTS OF JUSTICIARY. 569
ment. Some of the neighbours came, and helped me to lift up the old No. 99.
woman. There was blood proceeding from the left side of the head ; ^^^''^J'*
she had a flannel cap on, through which the blood came. We took her ■
to the outer room, and put her on a stool before the fire. We got her ^prfi 29
daughter-in-law, Mrs David Blyth, She came. The cap was then 1852.
taken off; there was a muslin cap underneath. There was a cut on the Murder,
ear. The hair was coagulated with blood, and she saw no more wounds
than the cut on the ear. We got water and bathed the wound. I and the
neighbours went out and in during the day, and saw the old woman. She
did not go to bed till afternoon ; she was unwilling to go to bed. When
we washed the hair, we found that there were wounds ; but I did not
examine them particularly. ■! thought a doctor should be sent for, but
did not say so. The, doctor was sent for, and came before next morn-
ing. The old woman said: she felt herself a little unwell in the morn-
ing, and was going into the press to get a little spirits, and Bell fol-
lowed her and knocked her down with the tongs. When I went back
with Mrs Dalrymple there was still knocking as well as the groaning.
The prisoner staid in the outer room the whole time. When we went
back, Mrs Dalrymple said, ' Bell, What's this you've done to your
mother?' Bell said, ' Did you see me ?' I recollect no answer to that.
I have lived there for ten years ; for two years Bell had been at home.
The mother and daughter lived on good terms. I saw the prisoner as
a neighbour during those two years. She seemed in the same state-of
mind as other people about the place ; I saw no symptoms of insanity
about her. She was frequently in bed, and Dr Baillie occasionally at-
tended her. That is the pair of tongs which is now shewn to me. The
prisoner was standing about while we were dressing the mother ; be-
fore the ^re. She gave no assistance. She spoke once. When some
one asked her to get a clean cap for her mother ; she said she knew no-
thing about the caps. She went afterwards and got the caps.
Cross-examined for the Pannel. — She said her mother had told her
where the caps were before she went. Grizzel was living at Balbirnie
Burn before I went there. She was very old, nearly eighty, but able
to go about. She was in the habit of going to the neighbours' houses
and mine. The prisoner had been at service before she came home.
She was not so much in the habit of going about as her mother. She
did not seem to^avoid strangers, but was not in the practice of going
out and in to neighbours' houses. She latterly went much less out
than she did when she first came home. She had been in my house
recently, before her mother's death. I was often in her mother's house.
Sometimes I did not see the prisoner. She was often in bed through
the day. I have known her keep her bed for several days on end.
She said she was unwell, and for that reason kept bed. The mother
had spoken to me .about the prisoner's health. She seemed anxious
about it, and said the prisoner was restless at night, and she herself
prevented from sleeping in consequence. I never heard the prisoner
570 CASES BEFORE THE HIGH COURT
No. 39. express ill will towards ber mother. She was always dutiful, so far .as
^nf ^il* ^ ^^^' '^ number of children were standing round Grizzel's window
when I went there. The door was not fastened, but on the sneck.- It
April 29 niade a considerable noise in the lifting, which anyone in the; house
1852. might easily have- heard. , I saw no one the first time or the seqofld
Murder, time I went in, till the prisoner came out with the tongs, and put
them at the fire.
By a Juryman. — No one in my hearing, so far as I remember,
asked the prisoner why she had done it. There was nothing to have
prevented her having escaped, if she had pleased,
Akn Scott or Dalrymplb. — I live atBalbirnie Burns, t went to
Grizzel's house on the 25tb November. I heard groans, but heard, no
knocking. ' I called, ' What's the matter ?' After a little. Bell came
out with the tongs in her right hand, hanging by the middle. I said
to her, ' Bell, what's the matter with, your mother ?' She said, ' You
' may go and see.' I spoke no more. Grizzel then' said,,' O come to
' me, for I'm killed.' I did not see what the prisoner did then. Mrs
Wilson went to the inner apartment. I asked the , prisoner to go and
firing ' but' her mother. She bid me go myself. She had put dpv^^
the tongs by this time. I went in and, found tha,t Mrs Wilson had lifted
her head, which was bleeding. I went for the neighbours to assist, and
went back and brought the old woman to the front room. She said,
' © what would have come of me if this had happpned through the
' night.' She said she had been unwell, and gone for spirits, and Bell
had followed and struck her with the tongs. She did not say how she
had been struck. Mary Mackie or BIyth was sent for. The head was
dressed, and the caps taken off. I said, ' Bell, Bell, come look at your
' mother's head ; come and see what you have done ; did ever I think
' you would have done so to your mother.' She said, ' Did you see me
' do that?' I said no more. I never recollect hearing anyone ask
why she had done it. I never did. The , prisoner , spoke very little
that day. I was out and in several times. The old woman did not go
to bed till towards evening. Dr Baillje came next day. I was in
and out assisting up to the time of her death. She died on Thursday
of the following week, December 4th. The prisoner was about the
house till she was apprehended on the Saturday. I never spoke to her
about it. We never left, Bell alone with her. ■ She did assist some-
times to attend her mother when we were in. I have known the
Blyths all my life, a;nd the prisoner all her's when at home. She was
pretty constantly in, service till within two years of her mother's death,
which were spent with, her mother. I saw her often ; constantly, when
out of bed ; she was a great deal in bed. I never saw her in my own
house but once during the two years. I never saw hex much out for a
considerable time, but I saw her in her mother's house. I never thought
that she was insane. I saw nothing wrong. I never heard it said by
neighbours that she was wrong in her mind.
AND CIRCUIT COURTS OV JUSTICIARY. 571
Gross-exainvried for the Pannel. — The old woman sometimes came No. 99.
to my house ; very often. The prisoner was frequently in bed. When 3^,^^*
her mother came to my house, she would say her daughter wearied, and
Perth,
she did not like to be long away from her. I never did see any unkind ^pril 23.
treatment by her of her mother. When the prisoner came out of the 1^^^-
back place, she stood about in the kitchen, and hung about in much the Murder,
same place during the whole day.
Catherine Morbison or Law. — I live at Balbiruie Burns. I re-
member the morning I was sent for, and went down and saw the old
woman in the inner room. I saw Bell. I heard no one ask her about
it. Others were more in the house than I was. I have known Isabella
from a child. She lived at home during the last two years. I always
saw her when at home. I did not see anything wrong about her mind.
She conducted herself like other people in conversation and otherwise.
I never heard that she was insane.
Gross-examined for the Pannel. — I saw her during the two years
only in her mother's house. She had been in mine, but not often. She
kept the house very much. It was matter of common remark among
the neighbours, that she staid at home. She had no particular compa-
nions or friends. I sometimes found her in bed during the day. I
never saw her ill-treat her mother. She was a quiet well-disposed
woman.
Maby Mackie or Blyth. — I am married to a son of the deceased.
I heard that my mother-in-law had been injured, and went down. She
was sitting by the fire. The neighbours were there, and the prisoner.
She said nothing to me. I took off the caps, and washed the head. I
saw blood and wounds. I dressed the head, and bound it up again. I
did not ask how it had happened to her. I heard the mother say her
daughter did it with the tongs. ■ The prisoner was present, but said
nothing. I asked her that day, after all were gone, why she had done
it. She said it was a pity she had not been dead, meaning, as I under-
stood, her mother ; she should have been dead long ago. I asked no
more that day; but next, when I went down about six or seven o'clock
in the morning, I asked her again why she did it, and she said she did
not know. On the Saturday she was apprehended. I attended more
or less up to the death on the Thursday. Dr Baillie was not sent for
till next day. The old woman did not rise again.
Gross-examined for the Pannel. — I have known the prisoner many
years. I know that she was in service at Kirkcaldy in 1847, for three
years before Martinmas 1847. She sometimes came to visit her mother
at that time ; I cannot say how often ; pretty frequently ; the distance
is seven miles. She always complained of a pain in her head. She
then went to a situation in Edinburgh, Mr Chancellor's. She remained
there six months, till Whitsunday 1 848. She took a house of her own
in Saunders' Street, Edinburgh. She gave up the place for her health.
She did not think herself fit for the place. She thought her own health
572 CASES BEFORE THE HIGH COURT
No. 99. bad. She kept this house for six months, till Martinmas 1848. She
^BMh* *^®° ^®°' '" ^^^^ Lothian, to the family of a Mr Brodie. I do not
— — — ^ remember how long she remained. She went to Mr Aytoun's in Kirk-
April 23 ^^^^7' after coming from East Lothian. I do not remember whether
1 8S2. she was at home in the interval. She went in April, and left in No-
Murder. vember 1849. She then came home, and remained till this happened.
When she came she complained of her head, and always grew worse
during the time she was at home. The first year she went about at
times, thdugh often she kept the house.. She was sometimes in bed
during the day, for weeks on end. She complained also of her back
and her face, particularly of her nose. She spoke of her nose ; she
said there was a discharge coming from it ; that she could not bear the
smell ; that it was falling off her face by degrees, and would soon be
off altogether. She persisted in this. I saw no discharge, and her
nose was not getting less. I saw nothing the matter with her face or
nose. I noticed a change in her eyes occasionally ; their expression
was wild and excited. When she lay in bed, her fingers were conti-
nually twisting and working with' the bed-clothes. She had no con-
versation except about her own health, particularly for some time before
her mother's death. She seemed to shrink from the company of strangers.
She was at one time very tidy, and latterly became careless and slovenly.
Her mother said she was restless during the night, and could not sleep.
She often came down to ask me to come at night, to see what I could
do to soothe the prisoner. I thought the prisoner was affected in her
mind ; her mother said she thought so too. The family talked among
themselves of her state of mind, and of sending her to a lunatic asylum,
about six months before her mother's death. I was very frequently in
the house. The prisoner never used harsh conduct towards her mother,
and was always a dutiful daughter. I spoke to her about these fancies
about her face and hands ; but she was quite positive, she said, she
heard a roaring noise in her head like thunder, and expected me to
hear it too.
Re-examined for the Prosecution. — When sent for by hep mother
' at night, I went down to see her, and found her in bed, complaining of
the pain in her head and nose. For two years she complained so, but
was worst at last. I spoke to her sisters and brother, and to my hns-
band, about the state of her mind, and to Dr Baillie.
Re-cross-examined. — It was our wish to keep it quiet from the
neighbours, and it was kept quite quiet. We always hoped she might
get better.
The dying depbsition of the mother was then read.
In that deposition the deceased said of her daughter,
' She is not very sound of mind ; she was generally
• quiet, but was sometimes excited;' also, that ' all of a
AND CIRCUIT COURTS OF JUSTICIARY. 573
sudden she took up the tongs, and struck me on the No. 99.
left side of the head two or three times. There was Biyth.
no quarrelling at the time, and I gave her no cause for Perth.
striking me. I862.
In the prisoner's declaration, whiqh was also read, she Murder.
said, ' I assaulted my mother by striking her two or three
' times on the head with a pair of tongs. There was not
' much quarrelling between us at that time or before.
' I do not know what induced me to take up the tongs
' and strike my mother.'
"William Baillie, Surgeon. — I was called in on the 26th, and
afterwards prepared a medical report. This is it Qreads];^ it is a
true report. I attended the deceased till her death. A pair of tongs
might have been the instrument with which the wounds were inflicted.
I also made a post mortem report along with Dr Grace. This is it
l^reads] ;■ it is also a true report. I knew the prisoner. I, attended
the prisoner for a year ; she complained of bodily ailments ; the greater
part I considered to be imaginary. She went beyond hypochondria.
She fancied that her nose was wasting off her face, and insisted on it ;
that her hands were becoming black, and wasting also. She insisted
on all this ; and I could convince her, neither by arguments nor by my
medical opinion, that4his was not so. These fancies extended more or
less over all the year, particularly the last six months. She confined
herself to bed, although I saw no necessity whatever. I had not seen
her for about two weeks before her mother's death. These fancies were
then strong. I formed the opinion that she was becoming insane, al-
though she was not actually mad. I did not talk with her on general
topics, but merely on the cause of my visiting, her ailments. Her mother
was generally present. They seemed on good terms. After the death,
I asked what this was she had been about. I got no answer, but a
vacant stare. Sometimes she did, and sometimes she did not, know
right from wrong.
Cross-escamined for the Pommel. — She brooded on her supposed ail-
ments, and her spirits at times were very much depressed. I noticed
a strange expression of eye ; it was rather wild and unsettled. This
appearance formed an element in my opinion of her insanity ; and I
spoke to her mother of this, and told her my opinion, and she said that
was her opinion also.
^ This medical certificate had reference exclusively to the state of
the deceased, and did not relate to the mental state of the pannel.
574 CASES BEFORE THE HIGH COURT
No. 99. Dr Grace was the next witness called ; but before he
Isabella
Biyth. appeared in the box, — .
Perth. LoED CocKBUEN interposed, and said that, in the opi-
1852. * nion of the Court, the defence of insanity had already
Murder. bccH made out ; and if the Juiy were of the same opi-
nion, it would be unnecessary to lead farther evidence.
The Jury thereupon deliberated, and immediately re-
turned an unanimous verdict, ' that the pannel killed her
' mother in the way and manner mentioned in the indict-
' ment ; but find it proven, that at the time the pannel
' was insane, and deprived of her reason.'
The Court then pronounced the following sentence :
' In respect of the insanity and deprivation of reason
' found proven, the Lords found, that the pannel, Isabella
' Blyth, is not an object of punishment, and therefore
' assoilzied her simpliciter. But they decerned and ad-
' judged her to be carried back to the prison of Cupar,
' therein to be detained and confined prisoner during all
' the days of her life, or at least ay and until farther orders
' of the Court of Justiciary with regard to her.'
AND CIRCDIT COURTS OV JUSTICIARY. 576
HIGH COURT.
Present, June 8.
1852.
The Lord JoaTicE-GENERAL,
Lords Cowan and Anderson.
Her Majesty's Advocate— /Sb^.-(?«n. Neaves — Milne A.D.—
E. 8. Gordon A. D.
AGAINST
Theodorb Dowd and Darby Forib — Adam.
Evidence — Police Officer — Confession. — In the course of a trial,
a police officer deponed, that some time after the apprehension of
the pannel, he asked him whether, at the time libelled, he was at
the alleged locus delicti. Objection sustained, that the paiinel's
answer was not admissible in evidence, as not being an ultroneous
statement.
Theodore Dowd alias. Peter Dowd, and Darby no. loo.
FuRiE alim, Jeremiah Haggarty, were charged with ^ds^^!^^
Stouthrief, as also Theft, especially when committed by High Court.
means of housebreaking, and by a person who has been ^'^^'
previously convicted of theft ; as also Assault, especially stouthnef.
when committed on a man in his own house^ to the effu-
sion of blood, fracture of bones, and danger of life.
In the course of the trial, Thomson, a police officer,
deponed, that some time after the apprehension of the
prisoners, he asked the pannel Dowd whether, at the
time libelled, he was at the house where the crimes
charged were said to have been committed, and that he
answered in the affirmative.
Adam, for the pannel, objected to this being received
in evidence. The question was put to the prisoner some
months after the commission of the offence, and he was
not warned that what he then said might be used in
evidence against him. It was not an ultroneous state-
ment made by the prisoner to the officer ; for the latter
2p
576 CASES BEFORE THE HIGH COURT
had virtually assumed the office of a magist
iJowd. taken a declaration from the prisoner without the usual
No. 100. had virtually assumed the office of a magistrate, and had ,
Theodore *' 6 » /
High Court, warning, without which, even a declaration otherwise
1852.' regularly taken, was inadmissible in evidence.
stouthrief. The LoED Justice-General. — If this evidence were
admissible, it would come to this, that if, in his declara-
tion, a prisoner denied all knowledge of the crime charged
against him, it might be proved, that five minutes before,
he had acknowledged his guilt, in reply to interrogatories
by a constable to whose charge he, had been committed.
The Solicitor-General, for the prosecution, agreed
that the evidence objected to should be deleted.
HIGH COURT.
Nov. 20. Present,
1852.
The Lord Justice-General,
The Lord Jtjstice-Clebk,
Lords Mackenzie, Moncbeiff, Cockburn, and Ivory.
Her Majesty's Advocate — Sol.-Genrjy[oncreifF-^-G. Young A.D.
AGAINST
Jean Kiellob' — Adcmi.
Concealment of Pregnancy — Statute 49th Geo. III. c. 14. —
Verdict. — Terms of a verdict on a charge of concealment of preg-
nancy, in respect of which the High Court of Justiciary, on certifi-
No. 101. cation, pronounced a sentence of absolvitor. '
Jean
-„.,„' At the Perth Autumn Circuit, Sept. 26. 1850, Jean
High Court. '■
Nov. 20. KiELLOR was indicted and accused :
18S0.
Conceal-
Pregnanoy ' Accidentally omitted from its proper place in this volume.
AND CIRCUIT COURTS OP JUSTICIARY. 577
That Albeit, by the laws of this and of every other well-governed No. loi.
realm, Child -Murder is a crime of an heinous nature, and severely ^i*^^"
.,,,, , ,., Kiellor.
puniSiUable: And ,aJjBEIT, by an. Act passed in the forty-nmth year of
the reign of His Majesty King George III., cap. 14, intituled ' An j^ifv. 20T'
' Act for repealing an Act of the Parliament of Scotland relative to liiS2.
' Child-Murder, and for making other provisions in lieu thereof,' it is Conoeal-
enacted, ' That if, from and after the passing of this Act, any woman ""^"i* °^
' in |that part of Great Britain called Scotland, shall conceal her being
'wi;th, child during the whole period of her pregnancy, and shall not
' call for and make use of help or assistance in the birth ; and if the
' child be foiind dead, or be amissing, the mother, being lawfully oon-
' vieted thereof, shall be imprisoned for a period not exceeding two
' years, in such common gaol or prison as the Court before which she
' is tried shall direct and appoint :' Yet tbub it is aud of verity,
that you the said Jean Kiellor are guilty of the said crime of child-
murder, actor, or art and part, or of the crime specified in the said
statute : In so par as, you the said Jean Kiellor having, on the night
of the 4th, or morning of the 5th, day of July 1 850, or on one or other
of the days of that month, or of June immediately preceding, or of
August immediately following, in or near the house or premises in or
near Marywell village, in the parish of Saint Vigeans, and county of
Forfar, theu and now or lately occupied by John Doig, a mason, then
and now or lately residing there, given birth to a living female ehild,
did, immediately or soon after the birth of said child, in or near said
house or premises, wickedly and feloniously, deprive said child of life,
by shutting it into a chest or box, in or near said house or premises,
or by otherwise excluding the air from said child, or preventing it from
breathing, or in some manner, and by some means to the prosecutor
unknown ; and the said child was thus murdered by you the said Jean
Kiellor : Or otherwise, time and place above libelled, you the said
Jean Kiellor did bring forth a living female child ; and you did con-
ceal your being with child during the whole period of your pregnancy,
and did not call for, and m^ke use of, help or assistance in the birth ;
and the said child was found dead, on or about the 10th day of July
1850, in a pond or quarry-hole at or near Abbeythan Quarry, in the
parish of Saint Vigeans, and county of Forfar.
The libel having been found relevant, the pannel
pleaded Not Guilty.
Evidence having been led for the prosecution, the
Advocate-depute withdrew the charge of child-murder.
Counsel on both sides then addressed the jury on
the proof, as to the charge of concealment of pregnancy
under the statute —
578 CA8E8 BEFORE THE HIGH COURT
No. 101. Lord Ivory charged the Jury.
Kieiior. The following verdict was thereafter returned : —
High Court. ' The Jury find that the pannel concealed her being
18S2. ' with child during the whole period of her pregnancy,
Conceal- ' with this exception, that she told the reputed i father of
Pregnancy. ' the child when she was two months gone, that she was
' with child by him: Find, that, she did not call for or
' make use of help or assistance in the birth, and find,
' that the child was afterwards found dead. But whether
' the matters thus found amount in law to the statutory
' offence libelled, the jury refer to the Court, If the
« Court shall hold that they do, the jury return a verdict
' of guilty as libelled. If the Court shall hold they do
' not, then the jury return a verdict of not guilty.'
In respect of the above verdict. Lord Ivory, the pre-
siding Judge, certified the case with the verdict, to the
High Court of Justiciary.
The diet having been called —
Adam, for the pannel, argued — ^That under the statute,
it was necessary to prove concealment during the whole
period of the pregnancy, but that the jury had found that
she had disclosed her situation to the father of the child ;
that the act made no distinction between one kind of
disclosure and another, or the intention with which the
disclosure was made, or between a disclosure made to
the father, or to any other person ; that as the father was
the person bound to provide for the safety of the child,
he was the proper person to whom the disclosure should
be made ; and that the point was already decided under
the former act of 1 690, case of Marion BurneU March
1709, Hume, vol. i. p. 295.
The Solicitor-General answered — That the disclo-
sure must be made with a view to the safety of the
child, and that it was not sufiicient that a mere disclo-
sure of the fact should be made ; that disclosure might
' even be made with a view to accomplish concealment,
which could not be held a disclosure in the view of the sta-
AND CIRCUIT COURTS OP JUSTICIARY. 579
tute ; that the father of an illegitimate child had an in- No. loi.
terest in the concealment, and therefore a disclosure to KidL-.
bim alone was not sufficient. High Court.
' The Court, on the report of Lord Ivory, having heard ^1*852!"'
' counsel hinc inBe, in respect of the terms of the ver- conoeai-
• diet, found the pannel not guilty, assoilzied her simpli- :^emancy.
' citer, and dismissed her from the bar.'^
It may be, doubtful yhetber this case can be held to have ad-
vanced in any degree the settlement of the question, for at least two
of the Judges went on the special terms of the verdict, which expressly
found, that there was an exception from the concealment, which being
so worded, was inconsistent with the intended reservation, and so did
not raise the point. It is, believed tha^t three Judges went on this
view.
APPENDIX.
No. I.
Act of Adjournal anent the Procedure and Records in
the High Court and Circuit Courts of Justiciary,
1st August 1849.
The Lord Justice -Clerk, and Lords ConnniBBioners of Justiciary,
considering that by an Act passed in the 11th and 12th year of the
reign of her present Majesty, cap. 29, intituled ' An Act to Facilitate
' and Simplify Procedure in the Court of Justiciary in Scotland," the
said Court is empowered, ' by Act or Acts of Adjournal, or otherwise,
' to alter the Forms of Interlocutors and Sentences at present in use
' in that Court, and to substitute others in their place in shorter or
' more convenient form ; and such new Forms of Interlocutors and
' Sentences shall have the same force, operation, and effect, in all re-
' spects, as the Forms of Interlocutors and Sentences at present in use,
' in place of which they may be substituted ;' As also, ' to make all
' such rules and regulations, by Act or A(fts of Adjournal, as may be
' necessary for carrying out the purposes and accomplishing the objects
' of this Act,' do hereby enact and declare the following Eules and
Regulations, and the following alterations in the Forms of Interlocu-
tors and Sentences at present in use, viz : —
1. That whereas, by the first section of the above -recited statute,
printed copies, or copies partly printed and partly written, of all In-
dictments and Criminal Letters may be used as the Record Copies, so
printed copies, or copies partly printed and partly written, of the Lists
of "Witnesses and Lists of Assize, respectively applicable to the same,
may also be used aa the Record Copies.
2. That Capital Sentences shall remain in their present form, in all
respects.
3. That the Interlocutor of Relevancy shall remain in the present
form, and be signed by the presiding Judge : And, in regard to all
other Interlocutors, they shall be distinctly minuted or entered in the
Record, and that entry signed by the Clerk, in all cases where, by
the present practice, such Interlocutors have been in use to be signed
by the Judge.
15 APPENDIX.
4. That when the panel, on being thereafter interrogated, shall
plead guilty, his plea shall be recorded and signed, as at present.
5. That when the panel pleads not guilty, the Clepk of Court shall
make an entry in the Record, that in respect that the panel pleaded
not guilty, the panel was remitted to an Assize, and that the follow-
ing Jurymen were balloted for and duly sworn to try the Libel, and
he shall proceed at once to ballot for and swear the Jury.
6. That it shall not be necessary to enter at length in the Record,
or for the Judge to sign, or the Clerk to read out the Sentences, as is
at present the usage. That in regard to all Sentences, other than
Capital Sentences, the Clerk shall make a distinct entry in the Re-
cord, signed by him, of the sentence actually pronounced by the Court,
exempli gratia : — The Court sentenced the panel to ten years' trans-
portation ; or, the Court sentenced the panel to fifteen months' im-
prisonment in the General Prison at Perth, or in the prison of Edin-
burgh; and such entries of the Sentences, signed by the Clerk, shall
be at all times full warrant and authority for all execution to follow
thereon, and for the Clerk of Court to issue extracts for carrying the
same into execution, according to the. form and style of the extracts
now in use, and in the same manner and to .the same eflfect as they
now are issued on the sentences as at present pronounced.
7. That the entry at the commencement of the proceedings, whether
in Edinburgh or on Circuit, shall be in future written in English, and
in the following or similar form : — At Edinburgh (date), present The
Lord Justice-Clerk, Lords A. and B. — At Perth (date), present
Lords A. and B., — ;the record bearing on the first day of a Circuit that
the Court was duly fenced, &c.
(Signed) J. HOPE, I.P.D.
INDEX OF MATTERS.
AGGEAVATIONS.
1. Mode of libelling aggravations, which was found relevant
where the major proposition of the indictment included several
charges, to all of which the aggravations did not apply. Wil-
liam Rait, High Court, Nov. 17. 1851, p. 500.
2. Held incompetent to charge a previous conviction of theft, or
that the pannels are habite and repute thieves, as aggravations
to a charge of robbery. Ellen Falconer and Others, High
Court, Jan. 26. 1852, p. 546.
See also Indictment, 5, 16, 17.
APPEAL.
1. Held (overruling Wilson v. Cameron, Broun, vol. ii., 284)
that an appeal from the Sheriff is competent to the Circuit
Court, before decemiture for the taxed expenses in the original
suit. Dundee and Union Whale Fishing Company v. Mavour
and Paton, Perth, Oct. 13. 1848, p. 15.
2. Objection to the competency of an appeal sustained, in respect
it was not lodged within ten days after judgment, disposing of
the merits and matter of expenses, although there was a sub-
sequent interlocutor in the case. Henderson v. M'^Aulay ^ Co.,
Glasgow, April 26. 1849, p. 219.
3. Held. 1. That there is no statutory provision requiring a cer-
tificate that caution has been found in an appeal to the Circuit
Court. 2. Circumstances in which, on an allegation that
caution had not been found, the Court offered time to allow
the necessary evidence to be produced. Marshall v. Turner,
Glasgow, April 26. 1849, p. 222.
4. Held, that where a suit ad factum prestandum, concluded
alternatively for payment of a less sum than £25, appeal to the
Circuit Court was competent. Wyher and Others v. Hendrie,
Glasgow, Sept. 17. 1849, p. 265.
5. Held, that in an action of multiplepoinding, it is the amount
admitted by the common debtor which determines whether an
&84 INDEX.
APPEAL^ — continued. -, ■•]"■'.
appeal is competent to the Circuit Court, and not the amount
claimed by the respective appearers in the process. Mathison
V. The Monlcland Iron and Steel Company, and Alexander W.
Buttery, Glasgow, Sept. 17. 1849, p. 266.
6. Held that an appeal might be presented within ten days from
the interlocutor approving of the taxation of expenses. Laun-
ders V. Mann Sf Co., Perth, April 24. 1860, p. 347.
7. Held, that an appeal to the Circuit is competent against a
judgment in an action of interdict. Opinion — That in all cases
an appeal to the Circuit is competent, unless the party object-
ing can shew that the subject-matter at issue exceeds the sum
of £25 sterling ; and that the onus of proving this lies upon
the objector. Wilson v. Watson, Perth, Oct. 1. 1851, p. 493.
8. An appeal to the Circuit Court of Justiciary against a decision
of the Sheriff sustain^g a claim of exemption from toll dismis-
sed as incompetent. Opinion — That the right of appeal from
the Sheriff-substitute to the Sheriff, is a right available to
parties in all cases where such right is not clearly excluded by
statute. Threshie v. Saffley, Dumfries, April 19. 1852, p. 563.
ART AND PART. ;
Direction to a Jury, that where two persons were indicted for a
criminal act, it would not be enough to warrant a conviction
against either, that the Jury should be satisfied that it was
committed by one of the< two, unless the Jury could say by
which, or were prepared to affirm, by a verdict, against both
that they were alike guilty. O. B. Fyott and W. B. Pyotty
High Court, June 16. 1851, p. 490.
ASSAULT. — See Culpable Homicide, 3.
ASSAULT WITH INTENT TO RAVISH.
In a charge of rape ; as also, assault with intent to ravish, the
assault with intent found proven on a girl who was a prostitute.
Edward Yates and Henry Parkes, Glasgow, Dec. 24. 1851,
p. 528.
ATTEMPT TO STEAL.— See Suspension, 8.
BASE AND COUNTERFEIT COIN.
1. Where two pannels were charged, inter aZ«a, with having base
coin in their possession at the time of uttering other base coin ;
1st, Held that it was sufficient to establish thei offence under
the statute against both prisoners, to shew that they were act-
ing under a common design in uttering, although one of them
only had possession of the base coin. 2d; Direction to the
Jury, that, in judging of the sufficiency of the proof of a charge
of uttering base money, the Jury were entitled to take into
consideration that the pannel had been previously convicted
INDEX. 585
BASE AND COUNTEEFEIT COI'N— continued.
of an offence against the coinage acts, as an evideiice of guilty-
knowledge. Mary Sutherland and Isabella Gibson or Murray,
High Court, Dec. 11. 1848, p. 135.
2. A counterfeit coin was substituted for a genuine shilling re-
ceived in change, and another shilling demanded in exchange
for it-^Held, that this was sufficient uttering under the statute
2d Will. IV. c. 34. John Mooney, High Court, Dec. 8. 1851
p. 509.
BIGAMY.
Held, 1st, That in an indictment for Bigamy, it is sufficient in a
question of relevancy to aver that the pannel was lawfully
married to the first wife, d,lthough the circumstances set forth
in the libel shew that such marriage must have been an irregu-
lar one. 2d, That the proper time to object to the validity o^
such marriage, is on the proof, if it be shewn that in truth the
marriage is open to challenge. JanieS Purves, High Court;
Nov. 20. 1848, p. 124.
BREACH OF TRUST AND EMBEZZLEMENT.
Circumstances in which the Court directed the jury to find the
pannel guilty of embezzlement, notwithstanding his accounts
had been passed, wherein was shewn the true balance due by
him. Walter Duncan, Perth, Sept. 26. 1849, p. 270.
CAUTION.
Held, 1. That there is no statutory provision requiring a cer-
tificate that caution has been found in an appeal to the Circuit
Court. 2. Circumstances in which, on an allegation that
caution had not been found, the Court offered time to allow
the necessary evidence to be produced. Marshall v. Turner,
Glasgow, April 26. 1849, p. 222.
CLOSED DOORS.
Held, that it was a relevant ground of suspension that the Justices
had tried and sentenced the complainer in a court from which
the public were excluded. Finnie v. Gilmour, High Court,
June 11. 1850, p. 368.
COMPETENCY.
1. Held, that where a suit ad factum prestandum, concluded
alternatively for payment of a less sum than £25, appeal to the
Circuit Court was competent. Wyher and Others v. Hendrie,
Glasgow, Sept. 17. 1849, p. 265.
2. Held, that in an action of multiplepoinding, it is the amount
admitted by the common debtor which dBtermines whether an
appeal is competent to the Circuit Court, and not the amount
claimed by the respective appearers in the process. Mathison
586 INDKX.
COMPETENCY— confrnwed • : i . : ■
V. The Monkland Iron and Steel Company^ and Alexander W.
Buttery, Glasgow, Sept. 17. 1849, p. 266.
3. Objection to the competency of an appeal sustained, in respect
it was not lodged within ten days after judgment, disposing of
the merits and matter of expenses, although there was a sub-
sequent interlocutor in the case. Henderson \. M'^Autdy ^ Co.,
Glasgow, April 26. 1849, p. 219.
See also Appeal — Indictment.
COMPLICITY.— See Art and Part.
CONCEALMENT OF PREGNANCY.
Terms of a verdict in a charge of concealment of pregnancy, in
which the High Court, on certification from the Circuit, pro-
nounced sentence of absolvitor. Jean Kiellor, High Court,
Nov. 20. 1850, p. 576.
CONFESSION.
In the course of the trial a police-officer deponed, that some time
after the apprehension of the pannel, he asked him whether at
the time libelled he was at the alleged locus delicti — Objection
sustained that the pannel's answer was nbt admissible in evi-
dence, not being an ultroneous statement. Theodore Dowd and
Darby Furie, High Court, June 8. 1852, p. 575.
See also Evidence.
CONSPIRACY.
Held, 1st, That it ia not objectionable in an indictment under
the Act 11th and 12th Vict. c. 12, to libel a previous design as
evidenced by subsequent overt acts. 2d, That it is enough, in
charging a conspiracy, to state that the pannel had presided
over a body formed' ' for the illegal purposes libelled,' with-
out charging him to have done so in pursuance of the com-
mon intent laid in the major. 3d, That the statute 11th and
12th Vict. c. 86, does not exclude the common law, and that
it is competent to libel the same species facti as sedition at com-
mon law, as well as a contravention of the statute. 4th, That
a conspiracy, to effect an alteration of the Constitution by
force, is only an aggravated form of sedition at common law.
James Gumming, John Grant and Others, High Court, Nov. 7.
1848, p. 17.
See also Sedition.
CULPABLE HOMICIDE.
1. Circumstances in which the Court directed the Jury that, after
the prosecutor had withdrawn the charge of CulpaHe Homicide,
they were not entitled to find the pannels guilty of 'assault, to
the danger of life. James Flinn and Margaret McDonald,
Perth, Oct. 12. 1848, p. 9.
INDEX. 587
CULPABLE BOMICIDE— continued. '
> ' 2; Circumstances in which the Jury, under thei advice of the pre-
siding Judge, found a pannel not guilty of culpable homicide
as libelled, it being charged that the act; whereby death was
occasioned, was done wickedly and feloniously. Robert Vance,
Glasgow, March 23. 1849, p. 2.10. •
3. Held, that where death ensues from an unlawful blow, if it
ensue therefrom in an ordinary and natural way, although, with
proper management, the injury might haire been cured, it is
properly charged as Culpable Homicide. Margaret Macmillan
or Shearer. High Court, Jan. 6. 1851, p. 468.
CULPABLE HOMICIDE,— CULPABLE, NEGLECT OP DUTY,
&c.
Held, 1. That these were substantially one charge, whenever
an accident happened which occasioned J.obs of life. 2. Direc-
tion to Jury, that when the Crown had proved an accident with
loss of life in a vessel under the pannela' command, it lay on
them to prove their innocence of allblame^ Thomas iHender-
son and Others, High Court, Aug. 29. 1850, p. 394. i
CRIMINAL LETTERS. ■
Held, 1st, That it was a fatal objection, to criminal letters that
the list of witnesses appended to the copy served, did not bear
to be signed by the Advocate-depute. 2d, That, after a
pannel had been declared exempt from trial, on -the above ob-
jection, he could' not competently be detained until fresh crimi-
minal letters could be served. John Cameron, High Court, -
Jan. 31. 1850, p. 295.
DECLARATION.
1. Held, that where a declaration is sworn to have been freely and
voluntarily emitted by two witnesses unconnected with the
fiscal's office, it may be read without calling the Magistrate who
took it, even though one of the witnesses said the prisoner request-
ed an alteration to be made, which didi not appear to have been
done. George Howden, Jedhmgh, April 18. 1850, p. 351.
2. Circumstances in which it was held competent to prove by
parole, that the actual date of a declajation was different from
that which was inserted in the preamble or title as the date at
which it had been emitted. James Robertson, Perth, July 28.
1850, p. 447.
DESCRIPTION.
Held, that in modern practice it was sufficient, to describe the
article stolen by a generic name, under which the party injured
could identify it. Daniel Eraser, High Court, June 3. 1850,
p. 365.
See also Locus — Ra.'e.
588 INDEX.
EVIDENCE. '
1 . 1st, When it was proposed to shew a witness a pamphlet said
to have been published by an associatidn of which the pannels
were members, — ruled that this was competent without first
proving that the prisoners were present at tbe meeting where
the matter was discussed, reserving to them the right of shew-
ing they were not concerned therewith. . 2d, Question whether
language indicative of a conspiracy could be' proved against a
pannel, as having been used by him on an occasion not men-
tioned in the libel. 3d, Held that it was competent to prove
bther expressions of a seditious nature, besides those charged
in the libel, in support of the chatgfe' of sedition. 4th, Held
that a letter could not be' read in support of a charge of con-
spiracy, libelled as commencing at a date subsequent to that of
the letter. 6th, Held, that where a letter relating to the alleged
common design had been directed to one of the pannels, and
found in the possession of another, it was competent evidence
against both, although it was not shewn that the writer was a
conspirator, or that the contents wei'e true, or that it was ever
seen by the ^arty to whom it was addressed. James Cum-
■tning, John Grant and ' Others, High Court, Nov. 7. 1848,
P-_17., '
2. Circumstances in which the Court refused to allow the Jury
to inspect the head of a pannel, in support of a plea of insanity,
as to a mark said to haVe been occasioned by an injury, it not
having been previously shewn in evidence that this mark was
there before the pannel committed the act for which he was
tried. John Thomson, High Court, Dec. 4. 1848, p. 129.
3. Held, that where a Procurator-fiscal, who had been employed
as an agent in the Sheriff Court in a civil suit, out of which
the prosecution arose, had been present when the pannel emit-
ted two declarations, and had also acted on behalf of the Crown
otherwise, he could not be examined as a witness on behalf of
the, Crown. John Gordon Robertson, High Court, Feb. 19.
1849, p. 186.
4. Circumstances in which the clerk to the Procurator-fiscal was
held inadmissible as a witness, to matters out of his own de-
partment. Helen Baly ahd Helen Kirk or James, Dumfries
April 27. 1850, p. 354. '
5. Circumstances in which a witness was held admissible not-
withstanding he had pi'ecognosced some of the witnesses. John
Barr, Ayr, May 1. 1850, p. 362.
6. Circumstances in which the questidn was raised, but not de-
cided, whether a husband is admissible as a witness against his
INDEX. 589
EVWE^CE— continued. ;,
wife, accused of forging his name. Alexander fegan and Eli-'
zaheih M^Kenzie or Hyde, Glasgow, Sept. 15. 1849, p. 261.
7. Held, distinguishing from the case oiMadure, Arkley, p. 448,
that a witness who had been present at the examination of
another witness, was not disqualified on the ground of partial
counsel, in respect that it appeared he had not thereby been
made acquainted with anything of which he was not previously
aware, Mfinnah Mitchell^ High Court, Jan. 4. 1850, p. 293.
8. Two pannels were accused of stealing two £50 Bank of Eng-
land notes, and a third was charged in the same indictment
with resetting them. The alleged resetter was fugitated for
non-appearance. Held, that statements made by him, and a
letter written by him on his apprehension in London, in the
act of passing one of the stolen notes, were admissible in evi-
dence, to the effect of identifying him as a party whose house
the two other pannels frequented. Eohina Burnet and Others,
High Court, Nov. 17. 1851, p. 497.
9. In a trial for rape, or assault with intent to ravish, .the prin-
cipal witness, who, at the time of the offence being committed,
was of weak intdlect, became insane a few days before the
trial. Medical evidence having been adduced, to prove that
she was nqt in a fit state of wind, to give credible. testimony,
, she vras not examined, but was produce^ for the purpose of
being identified by the other witnesses. Edward .Yates and
Henry Parlces, Glasgow, Cqc. 24. 1851, p. 528.
10. In the course of a trial, a police-officer deponed, that some
time after the apprehension of the pannel, he asked him whe-
ther, at the time libelled, he was at the alleged locus delicti.
Objection sustained, that the pannel's answer was not admis-
sible in evidence, not being an ultroneous statement. Theodore
Dowd and Darby Furie, High Court, June 8. 1852, p. 575.
EXPENSES.
See Appeal, 1 and 2.
FALSEHOOD, FRAUD, AND WILFUL IMPOSITION.
1. (1.) In a charge of ' Falsehood and Fraud, particularly the
' fraudulently and feloniously obtaining the goods of others
' upon false pretences and appropriating the same, without
' paying, or intending to pay therefor :' Held, that it was not
necessary to allege that the pannel assumed any false character,
or that he used any other false pretence than that of under-
taking to make a cash payment of the price of the goods, ' he
' fraudulently and feloniously intending, nevertheless, that the
' said price should not be paid, and that he should appropriate
' the said goods to his own uses and purposes, without payment
580 INDEX.
FALSEHOOD, FRAUD, &o.— continued. ' ■ j
' being made therefor;' and having so appropriated them.
(2.) A party had used, to a very small extent, the firm of
' J. Stevenson and Co.,' in Glasgow, where he had attempted
to carry on business : he was not in business anywhere else ;
he fraudulently adhibited the signature ' J. Stevenson and Co.,'
as acceptors to a bill for £200, dated at Manchester, in order
that the bill might bfe used and uttered as a bill accepted by a
Manchester firm, and the bill was so used and uttered ; there
was no such Manchester firm : Held to be a forgery. James
Hall, John Howie, and John Stevenson, High Court, July 25.
1849, p. 254.
2. Direction to the Jury as to what was necessary to support a
charge of Falsehood, Fraud, and Wilful Imposition. Held,
2d, That it was sufficient, in absence of counter proof, to esta-
blish that the Christian name of the prisoner was dififerent from
that which he had used on the forged instrument, that he had
given another name to the Sheriff, and answered to the indict-
ment framed conform thereto. Menzies, High Court, Feb. 5.
1849, p. 153.
3. Circumstances in which a cumulative charge of falsehood,
fraud, &c., together with theft, was sustained as relevant on
the same species faeti. James Chisholm, High Cotirt; July 9.
1849, p. 241.
FOREIGN LAW.
Held, that evidence of foreign law, deponed to by a skilled wit-
ness, was binding upon a Scotch Court, where the subject-
matter related to the validity of a foreign contract. William
Bennison, High Court, Aug, 1. 1860, p. 453.
FORGERY.
Held, that the crime of forgery is committed by the use of a false
Christian name, if that be used with the intention to mislead.
Alexander James Petty Menzies, High Court, Feb. 5. 1849,
p. 153.
HEARSAY.
See EviDENCBj 9.
HUSBAND AND WIFE.
See Evidence; 6 ; also Theft, 6.
INDICTMENT.
1. Held that there is no land in Scotland truly extra-parochial,
and that in the case of a peculiar jurisdiction it is sufficient to
libel the offence alternatively, as having been committed within
one or Orfcher of the adjacent parishes. Question, whether it is
a fatal objection when a wrong parish is named in the libel, if
it be shewn in proof, that the locus mentioned is situate in
INDEX. 531
mOICTMENT— continued.
another parish. John Paterson and David Ritchie, Stiriing,
Sept. 7. 1848, p. 1.
2. Held, 1st, That it is not objectionable in an indictment under
the Act 11th and 12 th Vict. c. 12, to libel a previous design
as evidenced by subsequent overt acts. 2d, That it is enough,
in charging a conspiracy, to state that the pannel had presided
over a body formed ' for the illegal purposes libelled,' without
charging him to have done so in pursuance of the common in-
tent laid in the major. 3d, That the statute 11th and 12th
Vict. c. 36, does not exclude the common law, and that it is
competent to libel the same species facti as sedition at common
law, as well as a contravention of the statute. 4th, That a
conspiracy, to effect an alteration of the Constitution by force,
is only an aggravated form of sedition at common law. James
Cumming, John Grant and Others, High Court, Nov. 7. 1848,
p. 17.
3. Objection, that where two rooms had been mentioned in the
indictment, and the charge was that the pannels had broken
open a lockfast place ' therein,' without saying in which room,
sustained, as too vague. James Gibson and Malcolm McMil-
lan, High Court, March 12. 1849, p. 191.
4. Circumstances in which a portion of a minor was struck out,
it being uncertain to which of the two majors it was applicable.
William M'Gall, High Court, March 13. 1849, p. 194.
5. Circumstances which were held sufficient to support a charge
of theft by housebreaking, although the pannel was not charged
with using any other violence than opening the attic door by
means of false keys. Christian Duncan, Aberdeen, April 24.
1849, p. 225.
6. Circumstances in which the Crown, on the recommendation of
the Court, withdrew a charge of Wanton and Malicious Mis-
chief, it appearing that in fact the prisoner's attempt had been
abortive. Ann Duthie, Aberdeen, April 24. 1849, p. 227.
7. Objection to the indictment, that the minor did not answer to
the major, repelled. John Elder Murdoch, Perth, May 2. 1849,
p. 229.
8. Circumstances in which a cumulative charge of falsehood,
fraud, &c., together with theft, was sustained as relevant on
the same species facti. James Chisholm, High Court, July 9.
1849, p. 241.
9. Circumstances in which the Crowa were held not entitled to
libel, after describing the person alleged to have been mur-
dered, ' or some other person to the prosecutor unknown.'
592 INDEX
INDICTMENT— coniewued
Williqm Clark -aneL'Jcmet Grai/ or rThomson, Aberdeen, Sept.
20- 1849, p. 267. i I : r
10. Circumstances in.wjiioh an objection to the relevancy of an
indictment, that it didnot charge that the attempt to defraud
had been succSssful^ was repelled. Oeorge Kippen, High Court,
Nov. 6. 1849j p. 276."
11. Held, 1st, That. it was not necessary, in an indictment charging
the sending of threatening letters, "to negative the truth of the
charges therein contained. 2d, That the wn'te of the charges
made could not be proved, either in justification or mitigation,
by the pannel. Alexander Fraser Crawford, High Court,,Jan. 6.
and Feb. 11. 185Q, p. 309.
12. Held, 1st, That it was a relevant charge against two.pannels
to aver that they ' both and each, or one or other,' acting in
pursuance of an unlawful concert, and for a fraudulent purpose,
adhibited th^ signature of one of them to the document ; 2d,
That, under the circumstances, the words at and near Edin-
burgh, and elsewhere, was not too vague a specification of the
locus delicti; and, 3d, That, in. respect of the above words im-
porting the commission of an offence in Scotland, ihe Jury
could not convict one of the paniiels, who had never left Eng-
land, as art and part of an offence committed in Scotland.
William Duncan and Alexander Cumminff, High- Court,
March 11. 1850, p. 334.
13. Held that in modern practice it was sufficient to describe the
article stolen by a generic name, under which the party injured
could- identify it. Daniel Fraser, High Court, June 3. 1850,
p. 365.
44. Held, that where an indictment omitted- the usual words of
style refei-ring to conviction by a Jmy, and only referred to his
judicial confession as the ground of punishment, it was compe-
tent to object, after the Jury were sworn, to the trial proceed-
ing, and that such objection was fatal. Huffk M^NeiUage,.
Inverary, Sept. 18. 1850, p. 459.
15. Terras of an indictment which was withdrawn, on the recom-
mendation of the Court, as not being sufficiently precise; Peter
Galloway, High Court, Feb. 14. 1851, p. 470.
16. An indictment charged swindling, as also falsehood,^fraud,
and wilful imposition, aggravated by a previous conviction of
swindling, and falsehood, fraud, and wilful imposition. Objec-
tion repelled, that in the former indictment under which the
pannel had be'en convicted, two separate crimes were charged
in the major proposition, viz. swindling, and falsehood, fraud.
INDEX. 593
INDICT MENT— confeWedr.
and wilful imposition, while there was only one species facti in
the minor, to which the t>annel had pleaded guilty, and which
could constitute only one of the crimes charged ; that it was
impossible to say to which crime the confession applied, while
the pannel could not be held guilty of both, and that therefore
it did not clearly appear that the conviction was for the same
crime as that now charged. Elizabeth M^Walter or Murray,
Hig'h Court, Feb. 2. 1852, p. 552.
17. Where there were two charges of contravention of the statute
2d Will. IV. c. 34, the second of which was charged to have
been committed ' time above libelled.' Opinion, That if the offence
of repeated uttering within the space of ten days, was intended
to be charged, the time of the second uttering should have been
more distinctly stated, and that charge accordingly withdrawn.
John Mooney, High Court, Dec. 8. 1851, p. 509.
18. Held, that it was not a good objection to the relevancy of an
indictment for Bigamy, where the first marriage was celebrated
in Ireland, by a Romish priest, that the indictment did not set
forth that both parties were Roman Catholics, if the prosecutor
xould competently prove that by the foreign law thie marriage
was lawful. Patrick Quillichan, High Court, Jan. 24. 1852,
p. 537.
19. Objection that a pannel designed as ' present prisoner in the
* prison of Glasgow,' could not be called on to plead to the in-
dictment, in respect that there was another prisoner indicted
for trial at the same Circuit, of the same name, and similarly
designed — repelled. John O'Neill, High Court, June 2.
1851, p. 483.
20. Mode of libelling aggravations, which was found relevant,
where the major proposition of the indictment included several
charges, to all of which the aggravations did not apply. Wil-
liam Rait, High Court, Nov. 17. 1851, p. 500.
INTERDICT.
1. Held, that an appeal to the Circuit is competent against a
judgment in an action of interdict. Opinion — ^That in all cases
an appeal to the Circuit is competent, unless the party object-
ing can shew that the subject-matter at issue exceeds the sum
of £25 sterling ; and that the owm« of proving this lies upon
the objector. Wilson v. Watson, Perth, Oct. 1, 1851, p. 493.
2. Circumstances in which an application by a tenant for an in-
terdict against a threatened sale of his effects, under a process
of sequestration by the landlord, was held incompetent. Srmth
V, Skinner, Dumfries, April 8. 1851, p. 480.
2 a i
594 INDEX.
INSANITY.
1. Circumstances in which the Court thought insanity sufficiently
proved to bar trial. Peter Peanver, High Court, Nov. 16.
1850, ^. 462.
2. Circumstances in which the Court interposed in the course of a
trial, and intimated an opinion tliat a defence of insanity had
been established by the evidence, and the Jury agreeing in
this opinion, returned a verdict to that eflect. Isabella Blyth,
Perth, April 29. 1852, p. 567.
JURISDICTION.
1. Circumstances in which an objection to the jurisdiction of the
Court was repelled. William M'Gall, High- Court, March 13.
1849, p. 194.
2. Held, 1st, That it was a relevant charge against two pannels
to aver that they ' both and each, or one or other,' acting in
pursuance of an unlawful concert, and for a fraudulent pur-
pose, adhibited the signature of- one of them to the document ;
2d, That, under the circumstances,- the words at and near
Edinburgh, and elsewhere, was not too vague a specification of
, the locus delicti; and, 3d, That, in respect of the above words,
importing the commission of an offence in Scotland, the Jury
could not convict one of the pannels, who had never left
England, as art and part of an offence comuiitted in Scotland.
William Duncan and Alexander Cumming, High Court, March
11. 1850, p. 334,
3. Held, that where contravention of the 1st and 2d sections
of 9th Geo. IV. c. 69, were not libelled cumulatively, the
Court of Justiciary had no jurisdiction in the absence of two
previous convictions. David Bell, Perth, April 25. 1850,
p. 348.
4. A conviction under the 9th Section of the Solway Fishery
Act, 44th Geo. Ill, c. 45, is not subject to review by the
Court of Justiciary. John Park v. Earl of Stair, High Court,
Jan. 12. 1852, p. 552.
See also Appeal.
LETTERS OF INTIMATION.
Held, that where a party in prison applies for and sgrves letters
of intimation under the act 1701, and thereafter before sixty
days, is liberated on bail at his own request, he may be in-
dicted anew after the expiration of sixty days, and that crimi-
nal letters are not necessary, David Balfour, High Court,
July 20. 1850, p. 377.
LIEN.
Held, that an innkeeper had a right to detain the wearing apparel
of a guest who neglected to pay his bill when demanded, even
INDEX. 595
• LIEN — continued. > ' - <
■ ■ ' ' though payment VsraS refused on the groitnd that the charges
therein exceeded what had been agreed on. M^Kicheny. Muir,
Dumfries, April 19. 1849, p. 223.
LOCUS.
1. Held that there is no land in Scotland trttly extra -parochial,
and that in the case of a peculiar jurisdiction it is Sufficient to
libel the offence alternatively, as having been comlriitted within
one or other of the adjacent parishes. Question, whether it is
a fatal objection when a wrong parish is. named in the libed,
if it be shewn in proof, that the locus' mehtioned is situate in
another' parish. John Paterson and David Ritchie, Stirling,
Sept. 7. 1848, p. 5.
■2. Question, 1st, Whether, in the particular circumstances, the
locus, where a riape was said to have been committed, was de-
scribed with sufficient accuracy. 2d, Whether the description
of the party said to have been injured was not too vague.
Dennis Connor and Edward Morrison, Glasgow, Sept. 23.
1848, p. 5.
MASTER AND SERVANT.— See 4th Geo. IV. c. 34.— Suspen-
sion, 4.
MEDICAL JURISPRUDENCE.— See Muedek, 3.
MURDER.
' 1. Circumstances in which the Public Prosecutor was entitled to
libel inconsistent modes of death in a charge of Murder. Alex-
ander Matson, High Court, Nov. 27. 1848, p. 127.
2. Held, that it was not a good plea in bar of trial, that the pan-
nel had been tried and convicted of a simple assault in the
Police Court, for striking the same blows in respect of which
he was charged with murder. John Stevens, Glasgow, Jan.
IL 1850, p. 287.
3. Circumstances in which a pannel was acquitted of Murder,
Thomas Hogg, High Court, June 9. 1851, p. 483.
NIGHT-POACHING.— See Statute 9th Geo. IV. c. 69.
NON-AGE.
1. Circumstances in which it was held to be incompetent to try
children, of the ages of ten and twelve, in the Police Court, in
the absence of their 'parents, whose residences were well known.
Meekison and Tutor Y. Mackay, High Court, Feb. 15. 1849,
p. 158.
2. A party who was alleged to have been detected in tke act of
snaring hares, instead of his real name, -which was Alexander,
gave the name of James, being that of a younger brother, a
child of two years of age. The complaint was directed against
■the said party by the name oi Jatn&, Ijut was served on Alex-
696 INDEX.
ISON- AGE— continued.
under. No appearaiace Was made for Alexandef^, but it was
explained at the trial that the name of James applied only to
the child. Sentence having' been pronounced, which bore 2»
gremio to be against JaTTjes— Suspension at the instance of
James (with concurrence of his father) sustained, and sentence
set aside. Middlemiss v. D'Eresby^Hi^h. Cottrt, March 16.
1852, p. 557.
PAEISH.— See Locus.
POLICE COURT.
1. Held, Ist, that it is not necessary, in a summary case in the
Police Court, that the pannel should have served upon him a
written copy of the complaint before trial ; and, 2d, that it is
no ground of suspension that he was not allowed forty-eight
hours to prepare his defence, he not having aSked delay at the
time. Mackean v. WilsoTi, High Court, Dec. 9, 1848, p. 132.
2. Held, that it was incompetent to pi'oceed in a Police Court
against a pannel who had been cited on the previous day to
that on which the case was heard, to answer a diiferent charge.
Craig v. Steel, High Court, , Dec. 20. 1848, p. 148.
3. Held, 1st, that that the Court of appeal would not direct en-
quiry in an appeal against a Police sentence, unless there was
some irregularity patent on the proceedings, or an allegation
tha,t the Magistrate had exceeded his jurisdiction^ 2d, That
the Procurator-fiscal had equal privileges as the rest of the
lieges in respect of offences where pecuniary penalties were
, alone sought to be recovered, and that a formal complaint was
in such case unnecessary. Burns v. Burnet, High Court, June
12. 1850, p. 373. ■ ' '- , ;
4. Circumstances in which a sentence of a Police Court was set
aside in consequence of the evidence not having been reduced
to writing. Phillips and Ford v. Cross, High Court, Dec. 20.
1848, p. 139.
5. Held, that a Police magistra:te has no jurisdiction, to try an
alleged offence, except upon a regular complaint. Welsh v.
Macpherson, High Court, April 19. 1850, p. 345.
6. Held, that it was a good charge in a Police complaint to al-
lege that the party had been guilty of a breach of the public
peace, by behaving in a disorderly manner at flr public meeting,
and interrupting and obstructing the proceedings. Sleigh and
Russell V. Moxey, High Court, June 12. 1850, p. 369.
POLICE-OFFICER.
Held, 1. That it is the duty of a Police-officer, who apprehends
a person without a warrant, to take him before a magistrate,
for examination, within as short, a period as practi<;able. 2
INDEX. 697
POLICE-OFFICEE— confenue<«.
. Where a delay of sixty. hours had intervened between a party
being so apprehended, and being taken before a magistrate,
the Court granted liberation. Macdonald v. Lyon and Main,
High Court, Dec. 8. 1851, p. 516.
POOR-LAW.
1. Held that a mother cannot acquire a settlement for her child
by a former husband, by means of a joint industrial settlement
with a second husband. Dinwidie v. Knox, Stirling, April
17. 1849, p. 215.
PROCEDURE. — :See Appeal — Police-Coukt — Prosecutor.
PEOCURATOR.FISCAL.
1. Held, that where a Procurator-fiscal, who had been employed as
an agent in the Sheriff Court in a civil suit, out of which the
prosecution arose, had beea present when the pannel emitted
two declarations, and had also acted on behalf of the Crown
otherwise, he could not be examined as a witness on behalf of
the Crown. John Gordon Robertson, High Court, Feb. 19.
1849, p. 186.
2. Circumstances in which the clerk to the Procurator- Fiscal was
held inadmissible as a witness, to matters out of his own de-
partment. Helen Daly and Helen Kirk or James, Dumfries,
April 27. 1850, p. 354.
3. Held not to be a good objection to the sentence of a Burgh
Court, that the party who acted as Assessor to the Magistrates
■was also joint Procurator- Fiscal for the county. Watt v. Home,
High Court, Dec. 8. 1851, p. 519.
PRODUCTION.
1. Circumstances in which the Court refused to allow the Jury to
inspect the head of a pannel, in support of a plea of insanity,
as to a mark said to have been occasioned by an injury, it not
having been previously shewn in evidence that this mark was
there berfbre the pannel committed the act for which he was
tried. John TJiomson, High Court, Dec. 4. 1848, p. 129.
2. Held, that the Jury are not entitled in a criminal case to in-
spect the documents libelled on, and compare them with other
productions, it being the part of the Crown to establish the
case by evidence given in the box. John Gordon Robertson,
High Court, Feb. 19. 1849, p. 186.
3. Circumstances in which the Court refused to allow the Jury
to see the documents produced, in accordance with the rule
stated in Robertson, p. 186. William M'Gall, High Court,
March 13. 1849, p. 194.
4. Held, that an unstamped receipt was admissible to shew theft
from an employer, although it was the only evidence against
598 INDEX.
PRODUCTION— conimuerf.
the employer that his claim was discharged against the debtor.
Ebenezer Beattie, Dumfries, April 28. 1850, p. 356.
PROOF.— See Evidence.
PROSECUTOR.
Circumstances in which the Court swore in, pro re nata, the for-
mer Advocate-depute as Counsel for Her Majesty. Dumfries,
April 19. 1851, p. 480.
RAPE.
Question, 1st, Whether, in the particular circumstances the locus
where a rape was said to have been committed, was described
with sufficient accuracy. 2d, Whether the description of the:
party said to have been injured was not too vague. Dennis
Connor and Edward Morrison, Glasgow, Sept. 23. 1848,
2. In a charge of rape, as also assault with intent to ravish, the
assault with intent found proven, on a girl who was alleged to
have been a prostitute.
3. In a trial for rape, or assault with intent to ravish, the princi-
pal witness, who, at the time of the offence being committed,
was of weak intellect, became insane a few days before the
trial. Medical evidence having been adduced, to- prove that
she was not in a fit state of mind to give credible testimony,
she was not examined, but was produced^ for the purpose of
being identified by the other witnesses. Edvfard Yates and
Henry Parkes, Glasgow, Dec. 24. 1851, p. 528.
RELEVANCY.
1. Held, 1st, That in an indictment for Bigamy^ it is sufficient in
a question of relevancy to aver that the pannel was lawfully
married to the first wife, although the circumstances set forth
in the libel shew that such marriage must have been an irre-
gular one. 2d, That the proper time to object to the validity
of such marriage, is on the proof, if it be shewn that in truth
the marriage is open to challenge. James Purves, High
Court, Nov. 20. 1848. p. 124.
2. Circumstances in which the Crown were held not entitled to
libel, after describing the person alleged to have been mur-
dered, ' or some other person to the prosecutor unknown.'
• William Clark and Janet Chray or Thomson, Aberdeen, Sept.
20. 1849, p. 267.
3. Held, that it was not a good objection to the relevancy of an
indictment for Bigamy, where the first marriage was celebrated
in Ireland, by a Romish Priest, that the indictment did not set
forth that both parties were Roman Catholics, if the Prosecu-
tor could competently prove that by the foreign law the mar-
INDEX. 599
'RKLEVANGY— continued:
.riage was lawful. Patrick QuiUiahan) High. Court, .Jan. 24.
1852, p. 537.
See also Indictment.
RESET OF THEFT.
Rule stated, that it was not enough to warrant Gonviction of a
married woman of reset of theft, that she had endeavoured to
conceal some of the articles from the police ; the Jury being
satisfied that she did this, not because she had been concerned
in the reset, but merely to screen her husband. John Hamilton
and Mary Gardm or Bamiltm, High Court, Jan. 2. 1849,
p. 149.
ROBBERY.
Held incompetent to charge a previous conviction, of theft,, or that
the pannels are habite and repute thieves, as aggravations to a
chjbrge. of Robbery. Helen Falconer aud Others, High Court,
Jan. 26. 1852, p. 546.
ROGUE AND VAGABOND.
See Suspension, No. 8. ,
SEDITION.
Held, 1st, That it is unnecessary to libel intention in a, oharge of
sedition ; and 2d, That when the Jury found the pannels guilty
. of sedition, in so far as they had Uijed language ' cal^plated to
' exeite popular disaffection, aild resistance to lawful authority,'
' and explained that they had purposely omitted the word 'in-
tended,' which was also charged in the minor, that the verdict
was good, and sentence might competently follow thereon.
James Gumming^' John Grant and Others, High Court, Nov. 7.
1848, p. 17.
SENTENCE.
Circumstances in which a conviction was sustained, although tha
parties accused were not furnished with a list of witnesses, nor
were allowed time to prepare defences, and no record Was kept.
flhapman v. ColviUe, High Court, Dec. 14, 1850, p. 466.
SOLWAY FISHERIES.
S.Se Statute 44th Geo. III. c. 45,
STAMP. , .
Held, that an unstamped receipt was admissible to shew theft
.from an employer, although it was the only evidence against
the employer that his claim was discharged against the debtor.
Ebenexer BeeUiie, Dumfries, April 28> 1850, p. 356.
STATUTE 1701, c. 6.
Held, that where a party in prison applies for and serves letters
of intimation under the act 1701,, and thereafter, before sixty
days, is liberated on bail at his own request, he may be in-
600 iSdkx.
STATUTE— continued. i :
dieted anew after the eXjaratioiaaf' sixty days, and that crimi-
nal letters are not necessary. JDawd. Balfour, High Court,
July 20, 1850, p. STY. . -,
44th Geo. III. c. xlv. ^ ^ >
A 'Conviction under the 9th section of the Solway Fishery Act,
44th Geo. III. c. xlv. is not subject -to revie w by the i Court of
JnB^ci3,ry,-'Parkv.EarlofMtair, High Court, Jan. 12.1852,
p. 532.
3d and 4th Geo. IV, o. 34; ? -
Held, that a judgment of the Quarter Session^ J)0th discharging
the servant -and abating the wages, was unwan-anted .by the
statute. Metheen v. Glass, High Court, Dee. 20. 1848^^ p. 146.
9th Geo. IV. c. 69.
Held, that where contravention' of the 1st and 2d aeotions of
9th Geo. IV. c. 69, were not libelled cumulatively, that the
Court of Justiciary had no jurisdiction in the absence of two
previous convictions. David fieW, ^Peyth,. April : 25. 1 850,
p. 348. - - -^
1st and 2d Will. IV. c. 43 (Tuknpike Act).
See Appeal, 8.
-^ 2d and 3d Will. IV. c. 68.
Held, that a farm-servant in pursuit of game, on lands occupied
by his master, was a trespasser under the provisions of the
statute. Earl of Selkirk v. Kennedy, High Court, Dec. 14.
1850, p. 463.
See also Warrant. • . : .„
■^ — — 6th and 7th Vict. c. 68. See Suspension, 9. ' .
6th and 7th Vict. c. xcix. (Glasgow Police Act).
Held, that' under the 203d section of the Glasgow: Police Act,
it was necessary to libel that the ceals had been sold and
delivered within the limits of the act^ and a sentence proceed-
ing on an alternative libel suspended. Lockie.v. M'Whirter,
High Court, Feb. 15. 1849, p. 161. ' ;.
11th and 12th Vict. c. 12. See'SEoiTioN.
11th and 12th ViOTi c. 42 and 43. See Summons.
11th and 12th Vict. c. cxiii. (Edinburgh Police Act).
See Suspension, 7. and 14.
SUMMONS. - , , .,
Held that an English ■ Summons, directed against a Scotchman,
for an alleged English offence," must be executed by a Scotch
offiefe*, to justify- any after, proceedings had thereoit in Scotland,
by way of apprehension^^*! Jacol Tail and John Taylor, Jed-
burgh, April 16. 1851, p. 475: ': a
INDEX, 601
SUSPENSION.
1. Held,) 1st, that ii;is not necessary, in a summary case in the
Police Court, thai the pannel -should have served upon him a
written copy of the complaint before trial; and, 2d, that it is
no ground of suspension that he was not allowed forty -eight
hours to prepare his defence, he not having asked delay at the
time. Mackean v. Wilson, High Court, Dec. 9. 1848, p. 132.
2. Circumstances in which a sentence of a Police Court was set
aside in consequence of the evidence not having been reduced
to writing. Phillips and Ford v. Cross, High Court, Dec. 20.
1848, 'p. .139.
3. Held, that where a person has been ptted as a witness, and
■ \, precognoBced as such, he- cannot, on his attendance in obedience
to his citation, be summarily put to the bar, and tried as being
-guilty of the offence, in respect of which he had been required
to attend as a witness. Ritchi&v. PiMer, High Court, Dec. 20.
1848, p. 142.. :. :. ■
4. Held, that a juffgiAerit of the: Quarter Sessions both ^scharg-
ing the servant and abating the wages, was unwarranted by the
statute. Methven v. Glass, High Court, Dee-. 20. 1848, p. 146.
5. Held, that it was incompetent to proceed in a Police Court
against a pannel who had been' cited on the previous jday to
: that on which, the case was heard, to answer a different charge.
, Craig v: Steel, High Court, Dec. 20. 1848, p. 148.
-6. Circumstances in which it was held to be incompetent to try
children, of the ages of ten and twelve, in the Police Court, in
the absence of their parents, whose residences were well known.
Meekison and Tutor- v^ Maokay, High Court, Feb. 15. 1849,
p. 159.
7. Circumstances in which it was held, that the decision of the
Police Magistrate was final, and that suspension of his decree
was incompetent. Graham v. Moxey, High Court, Feb. 17.
1849, p. 168.
8. Held, refusing a Note of Suspension, that it was an offence
cognisable in a Police Court, to put a hand into a passenger's
pocket with intent to steal, and that a party would be properly
convicted as a rogue and vagabond in respect thereof. Etch
and Golfv. Burnett, High Court, March 15. 1849, p. 201.
9. Held (1.), That all interlocutors in a cause in an Inferior
Court, must be properly signed as required by law, and that
: ^ the' Court .will suspend if any material stage of the proceedings
is left unauthenticated. - (2.) That where the Court has origi-
nal jurisdiction over the subject matter, they have also the
power of review, although theipi'oeeedingsareof a civil nature.
Giles V. Baxter, High Court, March 15. 1849, p. 203.
602 INDEX.
SUSPENSION— continued. - U '"->.!
10. Held that it: was suffieient,-. in a. policd complaint^ to aver that
the suspender had resisted or molested officers of police in the
execution o£ their duty, withcrat setting forth what was the
particular duty they were engaged in discharging', i Telfer v.
Jfoa:e5r,-High Court, June 2, 1849, p. 231.
11. Held, that where a complaint in the Inferior Court alleged
contraventien of bye-laws under a statute which were invalid,
• it was no answer to a suspens'ion to aver ihat the alleged
offence was penal at common law* Veitck and Others v. Reid,
High Court, June 2-. 1849, p. 235.
12. Circumstances in which it was held, that, where a man had
been summarily apprehended without warrant; or other 'intima-
tion of the charge against him before trial, the conviction could
not be sustained. Jameson v. Pilmer, High Court, June 2.
1849, p. 238. "■;, f?
13. Held that it was necessary that every sentence i should be
signed by tw6 Justices ; and a Note of iSmspension passed, in
respect the sentence under review had been signed by one only,
although two were present when it was pronounced. J^Lock
and P. DooUn v. Sted, High Court,. Feb. 6. 1850,: p. 307.
14. Circumstances in which the Court suspended a conviction in
the Police Court, on the ground that' the original complaint
charged no cognizable offence; Burns v. Moxeyj High Court,
Feb. 21. 1850, p. 330.
15. Held',- that it was a relevant- ground of suapensiKiiai that the
Justiees had tried and sentenced the eomplainer in a court
from which the public were excluded. Finnie?. v. £rilmour,
High Court, June 11. '1850; p. 368.
1%. Held, that it was a good charge in a police' complaint to allege
that the party had been guilty of a breach of the public peace,
by behaiving in a disorderly manner at a public meeting, and
interrupting and obstmteting the^proceedings. Sle^kand Bus-
sell V. Moxey, High Court, June 12. 1850jipv 369.
17. In a suspension of a sumnrary trial for theft, under the Gene-
ral Police Act, 13th and 14th Viet. c. 33,; the-parties'accused
alleged that they were brought to trial without any summons
being served upon them ; that they were not- made aware of
their right, in virtue of certain regulations,, fratned by ai^thority
of the statute, to apply for time to summon witnesses, and that
no sufficient -explanation was given to them to enable: them to
put their application for' time into correet.form. The Court, on
advising a proof of thesfe ^Uegatisms;- suspended ;the jsentfence,
and' ordered repayment of a pcOTniary penalty wMdi had been
INDEX. 603,
SUSPENSION— conftnwed , ;"
imposed on one o£ the parties. Myths, v. M^Bain, High Court,
Feb. 20. 1852, p. 554.
18. A party who was alleged to have been detected in the act of
snaring hares, instead of his real nam6, which was Alexander,
gave the name oi James, being that of a younger brother, a
child of two years of age. The complaint was directed, against
the said party by the name of James, but was served on Alex-
ander. No appearance was made for Alexander ; but it was
explained at the trial that the name of Jiames. applied only to
the child. Sentence having been pronounced, which bore, in
gremio, to be against Jiames— Suspension at the instance of
James (with concurrence of his father) sustained, and sentence
set aside. Middkmiss v. D'Ereshy, High Court, March 16.
1852, p. 557.
SWINDLING.
Opinion — That ' swindling' is not a proper nomen juris, and that
the legal term is falsehood, fraud, and wilful imposition. Eli-
zabeth M''Walter or Murray, High Court, Feb. 2. 1852, p. 552.
THEATRICAL REPRESENTATIONS.
See Suspension, 9.
THEFT.
1. Circumstances in which it was held that the amotio was not
sufficient to constitute, the crime of theft. James Hoyes, High
Court, Dec. 11. 1848, p. 134.
2. Circumstances which were held sufficient to support a charge
of theft by housebreaking, although the pannelwas not charged
with using any other violence than opening the attic door by
means of false keys. Christian Duncan, Aberdeen, April 24,"
1849, p. 225.
3. Circumstances in which an objection to the relevancy of an
indictment, that it did not charge that the attempt to defraud
had been successful, was repelled. George Kippen, High
Court, Nov. 6. 1849, p. 276.
4. Held that it was not theft in a pawnbroker to appropriate the
articles which had been pledged -with Jier. Catherine Cross-
grove or Bradley, High Court, Feb. 6. 1850, p. 301.
5. Direction to the Jury, that if a party receive an article for the
purpose of pledging it, he may be guilty of stealing the same,
although he actualy pledge it,. if his purpose was all along to
appropriate the advance thereon to himself. Daniel Eraser,
High Court, June 3. 1850, p. 365.
6. A pannel, from whom certain articles had been purchased, re-
ceived from the purchaser a, one-pound note, in order that he
604 iiTOfiXv
THEFT — continued. , ;
might retSfa the'j^riee,' and return the balance. He appropri-
ai^Jthewhole sum. — Held, that this was theft of the one-pound
note, and not merely of the balance. John Mooney^ High
' Court, Nor. 17. 1851, p. 496. •
7. Held, 1. That it was criminal in a husbandy^ who, by ante-
nuptial contract, had excluded his right of administration, to
appropriate surreptitiously a sum of money, a portion of an
heritable bond, forming part of the wife's tocher. 2. That the
indictment was relevantly laid as a charge of theft. Joseph
X^!7^o«f, High Court, Dec. g. 1851, p. 501.
8. Held, that where yarn is given to a workman for the purpose
of being woven into a web, he is guilty of theft if he appropri-
ate the yarn to his own use. Watt v. Home, High Court,
Dec. 8. 1851, p. 519.
9. In a charge of stealing a watch, the owner deponed that the
pannel made a snatch at the gnardichain by which the watch
was secured, so as to draw it out of his pocket ; but the chain
was not broken, nor was anything actually carried off. Ques-
tion, whether this amounted to theft ? William Ciimeron,
Glasgow, Dec. 22. 1851, p. 526.
THREATENING LETTERS.
Held, 1st, That it was not necessary, in an indictment charging
the sending of threatening letters, to negative the truth of the
charges therein contained. 2d, That the Veritas of the charges
made could not be proved, "either In justification or mitigation,
by the pannel. Alexander Fraser Crawford, High Court,
Jan. 6. and Feb. 11. 1850, p. 309.
TIME.
Where there were two charges of contravention of the statute
2d Will. IV. c. 34, the second of which was charged to have
been committed 'time above libelled,' observed, that if the
offence of repeated uttering within the space of ten days, was
intended to be charged, the time of the second uttering should
have been more distinctly stated — and that charge accordingly
withdrawn. John Mooney, High Court, Dec. 8. 1851, p. 509.
TRESPASS.
Held, that a farm- servant in pursuit of game, on lands occupied
' by his master,- was a trespasser, under the provisions of the
statute. Earl of Selkirk Vr Kennedy, High Court, Dec. 14.
1850, p. 463.
TRIAL.
1. Circuiastances in which, on occasion of the illness of one pannel,
the Court continued the case till a subsequent day, as against
TRIAL — continued. -■■ ,-. ■
: both 'herself- and another party charged as ^n accomplice.
Apnes Ohambers or McQueen and Helen Henderson, High
Court, July 25. 1849, p. 252.
2. Opinion intimated, that it was not a good objection in bar of
trial, that the Procurator-fiscal had obtained information from
the pannel under a pledge that she should not be tried. Archi-
bald Miller and Susan Brown or Miller, High Court, Jan. 3.
1850, p. 288.
VAaHANCY.
Circumstances in which the Court suspended a -conviction in the
Police Court, on the ground that the original complaint charged
no cognizable offence. Bums v. Moxey, High Court, Feb. 21.
1850, p. 330.
VERDICT.
>■ 1. Held, 1st, That it is unnecessary to libel intention in a charge
of sedition ; and 2d, That when the Jury found the pannels
guilty of sedition, in so far as they had used language ' calcu-
' lated to excite popular disaffection, and, resistance to lawful
• authority,' and explained that they had purposely omitted the
word ' intended,' which was also charged in the minor, that
the verdict was good, and sentence might competently follow
thereon. James Cumming, John Grant and Others, High Court,
Nov. 7. 1848, p. 17.
2. Terms of a verdict in a charge of concealment of pregnancy,
on which the High Court, on certification, pronounced sentence
of absolvitor. JeanKilelor, High Court, Nov. 20. 1850, p. 586.
WANTON AND MALICIOUS MISCHIEF.
Circumstances in which the Crown, on the recommendation of
the Court, withdrew a charge of Wanton and Malicious Mis-
chief, it appearing that in fact the prisoner's attempt had been
abortive. Ann Duthie, Aberdeen, April 24. 1849, p. 227.
WARRANT.
1. Held, 1. That it is the duty of a police-ofiScer, who apprehends
a person without a warrant, to take him before a magistrate,
for examination, within as short a period as practicable.
2, Where a delay of sixty hours had intervened between a
party being so apprehended and being taken before a magis-
trate, the Court granted liberation. McDonald v. Lyon and
Main, High Court, Dec. 8. 1851, p. 516.
2. A conviction under the 2d Section of the Act 2d and 3d
Will. IV. c. 68, set aside, in respect that the warrant for citing
the accused did not bear that it proceeded on the oath of a
606 JN&EX.
WARRANT— continued.
•credible witness, in terms of § 11 of the statute. Simpson v.
Craufordf High Court, Dec. 22. 1851, p. 523.
WITNESS.
Circumstances in which a witness was held admissible, notwith-
standing he had precognosced some of the other witnesses.
John Barrel Ayr, May 1. 1850, p. 362.
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